Bichitra Baishya vs Md. Rubul Ahmed And 6 Ors
2023 Latest Caselaw 4435 Gua

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GAHC010226532022




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

                           Case No. : RSA/154/2023

         BICHITRA BAISHYA
         S/O LATE HARI PRASAD BAISHYA,
         VILL.- MAROWA, MOUZA- UPAR BARBHAG, P.S. AND DIST.- NALBARI,
         ASSAM.



         VERSUS

         MD. RUBUL AHMED AND 6 ORS.
         S/O LATE MAFIJUDDIN AHMED,
         R/O KORIYA, MOUZA- UPAR BARBHAG, P.S. AND DIST.- NALBARI, ASSAM.

         2:MD. BAPAN AHMED
          S/O LATE MAFIJUDDIN AHMED

         R/O KORIYA
         MOUZA- UPAR BARBHAG
         P.S. AND DIST.- NALBARI
         ASSAM.

         3:MUSSTT. JABEDA BIBI
         W/O LATE MAFIJUDDIN AHMED

         R/O KORIYA
         MOUZA- UPAR BARBHAG
         P.S. AND DIST.- NALBARI
         ASSAM.

         4:GARGA BAISHYA
          S/O JALIRAM BAISHYA

         VILL.- MAROWA
         MOUZA- UPAR BARBHAG
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            P.S. AND DIST.- NALBARI
            ASSAM.
            PRESENTLY RESIDING AT HATIGAON
            LAKHIMI NAGAR
            HOUSE NO. 11
            GUWAHATI
            DIST.- KAMRUP
            ASSAM.

            5:ANIL BAISHYA
             S/O LATE BAIKUNTHA BAISHYA

            VILL.- MAROWA
            MOUZA- UPAR BARBHAG
            P.S. AND DIST.- NALBARI
            ASSAM.

            6:DEBEN BAISHYA
             S/O LATE BAIKUNTHA BAISHYA

            VILL.- MAROWA
            MOUZA- UPAR BARBHAG
            P.S. AND DIST.- NALBARI
            ASSAM.

            7:GIRIDHAR BAISHYA
             S/O LATE BAIKUNTHA BAISHYA

            VILL.- MAROWA
            MOUZA- UPAR BARBHAG
            P.S. AND DIST.- NALBARI
            ASSAM

Advocate for the Petitioner   : MR. B D DEKA

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

18.10.2023 Page No.# 3/4

Heard Mr. BD Deka, learned counsel for the appellant.

The suit of the appellant was dismissed on the ground that the suit for partition would not be maintainable although it is projected by the learned counsel for the appellant that the appellant would otherwise prove his right, title and interest. The dismissal of the suit was upheld by the learned First Appellate Court and therefore this appeal. This appeal under section 100 CPC is directed against the First Appellate judgment and decree dated 10.08.2022 passed by the learned Civil Judge, Nalbari in TA 30/2019 thereby dismissing the same and affirming the judgment and decree dated 16.08.2019 passed by the Munsif Judge no.1, Nalbari in TS no.96/2013.

The appeal is admitted for hearing on the following substantial question of law:

(1) Whether the learned Courts below had committed error in law in dismissing the suit of the appellant on the ground of untenability of the prayer for partition whereas the claim of right, title and interest and possession was substantially found in favour of the appellant?

(2) Whether it was permissible for the learned Courts below to mould relief within the meaning of Order VII Rule 7 CPC rather than dismissing the suit of the appellant on the ground of defect in the prayer for partition?

The appellant is permitted to raise any other substantial question of law which may arise in course of hearing.

Let the records be called for.

Issue notice returnable in 5(five) weeks.

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The appellant shall take steps within the course of the day for service of notice on the respondents within 2(two) days by registered post with A/D as well as by usual process.

Liberty is granted to the learned counsel for the appellant to collect the postal receipt number from the Registry so as to track service through the postal website of India Post and to submit the track report before the Registry prior to the next date fixed.

List the matter after 5(five) weeks.

JUDGE

Comparing Assistant