Gauhati High Court
Page No.# 1/3 vs B Gupta (Tea) Pvt. Ltd. (Unit) on 20 March, 2023
Page No.# 1/3
GAHC010045382023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/44/2023
SALEY AHMED AND ANR.
S/O LATE ANJIR ALI,
RESIDENT OF VILLAGE BONDUKMARA R/A PO BARHAILAKANDI, PS AND
DIST HAILAKANDI, ASSAM
2: MD. NASIR UDDIN
S/O LATE ANJIR ALI
RESIDENT OF VILLAGE BONDUKMARA R/A PO BARHAILAKANDI
PS AND DIST HAILAKANDI
ASSA
VERSUS
B GUPTA (TEA) PVT. LTD. (UNIT)
BUNDOOKMARA TEA ESTATE, WITH THE REGISTERED OFFICE AT
CHATTARJEE INTERNATIONAL CENTRE, 16THFLOOR, ROOM NO.. 9 33A
CHOWRANGEE ROAD, KOLKATA 71 CARRYING ON BUSINESS INTER ALIA
AS OWNER OF BUNDOOKMARA TEA ESTATE, PO JAFFIRBOND,
HAILAKANDI, REPRESENTED BY THE DEPUTY MANAGER,
BUNDOOKMARA TEA ESTATE, DIST HAILAKANDI, ASSAM 788160
Advocate for the Petitioner : MR. I H LASKAR
Advocate for the Respondent :
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BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : --20.03.2023
Heard Mr. P.K. Deka, learned counsel for the appellants.
This second appeal under Section 100 of the C.P.C. has been filed against the impugned
judgment and decree dated 28.11.2022 passed by the learned District Judge, Hailakandi
in Title Appeal No. 01/2020 upholding the judgment and decree dated 19.02.2020
passed by the learned Civil Judge, Hailakandi in Title Suit No. 26/2011.
This second appeal is admitted on the following substantial questions of law :-
I Whether the learned Courts below were right in not framing any issue on the point
of adverse possession as a counter-claim on the part of the Defendants/ Appellants,
which claim has been specifically made in the Written Statement of the Defendants/
Appellants, in violation of Order 8 Rule 6A,6B and 8C of the Code of Civil Procedure,
1908, for which a separate petition for such counter-claim is not a mandatory one ?
II. Whether the learned courts below, while discussing issues No. II and III, were
correct in arriving at the findings that the suit is maintainable and the same is not barred
by the law of limitation by completely overlooking the provision under Article 113 of
the Limitation Act, 1963, as well as the deposition of PW-1 and the Exhibit-B wherein it
is clearly established that the plaintiff filed a G.R. case No. 83/1983 under Section 447
of IPC, alleging encroachment of the suit land on 24.01.1983 by the father of the
Defendants/ Appellants and construction of house therein, and the learned Judicial
Magistrate, 1st Class, Hailakandi, found the case of the Plaintiff/ Complainant/
Respondent as "false" and acquitted the father of the Defendants/ Appellants with
compensation of Rs. 500/- to paid by the plaintiff/ complainant/ respondent, with a
further observation that the father of the defendants was in possession of the alleged
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encroached land prior to 24.01.1983 by constructing houses ?
III. Whether the findings of the learned courts below suffer from perversity, since
while discussing the most vital issue, i.e., the issue No. V, they arrived at the findings
that the plaintiff/ respondent has clearly established his right, Title and Interest over the
suit land by recording that the PW-1 denied the claim of the defendants/ appellants about
their peaceful possession of the suit land since 1968 and the said learned appellate court
below even observed that "there is nothing to hold that the defendants were in
possession of the suit land since 1968 as claimed by them," whereas the fact remains
that the said PW-1 in his deposition has clearly deposed that, the "defendants have been
possessing and occupying the S/L without any interruption from any garden authority
from the year 1968" ?
IV. Whether the findings of the learned courts below suffer from perversity in view of
the fact that certain vital documents as exhibited by the Defendants/ Appellants as well
as the evidence adduced by the witnesses relating to their possession of the Suit land
since the year 1968 have been completely overlooked ?
The appellants shall be at liberty to formulate any other substantial questions of law at
the time of hearing.
Issue notice to the sole respondent returnable by 4 weeks.
The appellants shall take steps for service of notice upon respondent by registered A/D
post as well as usual process within 7 days.
Call for the LCR of Title Appeal No. 01/2020 and Title Suit No. 26/2011.
List the matter accordingly.
JUDGE
Comparing Assistant
