Pradip Goala vs Raghunath Goala
2023 Latest Caselaw 2486 Gua

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GAHC010055582023




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

                                   Case No. : RSA/71/2023

            PRADIP GOALA
            S/O LATE LAKSHIYA GOALA @ LAKHI GOALA, RESIDENT OF LABOCPAR
            PART I, PS LAKHIPUR, DIST CACHAR, ASSAM



            VERSUS

            RAGHUNATH GOALA
            S/O LATE HARI NARAYAN GOALA,
            RESIDENT OF LALANGKITTA LABACPAR PART III, PO PAILAPOOL. PS
            LAKHIPUR, DIST CACHAR, ASSAM



Advocate for the Petitioner   : MR SISHIR DUTTA

Advocate for the Respondent :




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                          ORDER

Date : 12.06.2023

Heard Mr. S. Dutta, learned counsel for the appellant.

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This appeal, under Section 100 of the Code of Civil Procedure, 1908, is preferred against the judgment and decree dated 22.06.2018, passed by the learned Munsiff, Lakhipur, in T.S. Case No. 118/2018, and judgment and decree dated 25.11.2022, passed by the learned Civil Judge No. 1, Cachar, Silchar, in Title Appeal No. 12/2018.

Upon hearing the learned counsel for the appellant, this appeal is admitted on the following substantial questions of law:-

1) Whether the learned Courts below failed to consider that the entire land of 11 Bighas was a joint family property out of which 3 ½ Bighas of land fell in the share of the appellant's father in view of the admissions of PWs- 1, 3 & 4, wherein they stated that Lakhi Goala was residing over 3 ½ Bighas of land situated at Labarpur, Part III and that Hari Narayan Goala was the Karta of the family?

2) Whether it is open to the respondent plaintiff to give up the case set out in the pleading and propound a new and different case?

3) Whether decision of a case can be based on ground outside the pleadings of the parties?

4) Whether the learned Courts below failed to consider that the suit for recovery of possession without a prayer for partition is maintainable, in view of the fact that the entire land where the appellants were residing were joint family property?

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The Court may also hear this appeal on any other substantial questions of law after notice to the parties.

Issue notice to the respondent, returnable within 4 (four) weeks.

The learned counsel for the appellant shall take steps for service of notice upon the respondent by registered post with A/D as well as by usual process within a period of 3 (three) days from today.

Also, call for the LCR.

List the matter after 4 (four) weeks.

JUDGE

Comparing Assistant