Bipul Baruah vs Lakhi Dutta And 2 Ors
2023 Latest Caselaw 3568 Gua

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GAHC010195662023




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

                                  Case No. : RSA/153/2023

            BIPUL BARUAH
            S/O LATE PADMADHAR BARUAH,
            R/O BANIPUR, BYE LANE- 5, P.O.- BANIPUR, P.S. AND DIST.- DIBRUGARH,
            ASSAM.



            VERSUS

            LAKHI DUTTA AND 2 ORS.
            W/O LATE GANESH KR. DUTTA,
            R/O ZIG ZAG ROAD, P.O., P.S. AND DIST.- DIBRUGARH, ASSAM.

            2:LIPI DUTTA
             D/O LATE GANESH KR. DUTTA

            R/O ZIG ZAG ROAD
            P.O.
            P.S. AND DIST.- DIBRUGARH
            ASSAM.

            3:SHILPA DUTTA
             D/O LATE GANESH KR. DUTTA

            R/O ZIG ZAG ROAD
            P.O.
            P.S. AND DIST.- DIBRUGARH
            ASSAM

Advocate for the Petitioner   : MR G N SAHEWALLA

Advocate for the Respondent :
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                                        BEFORE
                       HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                              ORDER

Date : 07.09.2023

Heard Mr. G.N. Sahewalla, learned Sr. Counsel, assisted by Ms. S. Todi, learned counsel for the appellant.

The appeal is admitted for hearing upon the following two substantial question of law.

(i) Whether the judgments of the learned courts below are perverse in failing to consider the statements of the plaintiff in the plaint and evidence that the sale deed could not be executed due to non-receipt of permission for sale from the office of the Deputy Commissioner and as such on 05.02.2015 the defendants gave the entire authority to the plaintiff to do the same by executing a General Power of Attorney but in the meantime, the plaintiff discovered that on 02.02.2015, the defendants executed a General Power of Attorney in favour of one Bolin Mech and one Tarun Konwar but cancelled the same on 02.04.2015 at the behest of the plaintiff but on 12.12.2016, again the defendants and their associates tried to grab the land and as such plaintiff filed various complaints and in that view of the matter, the suit cannot be held to be barred by limitation and as such, the impugned judgment and decree dated 28.07.2023 passed by the learned Additional District Judge, Dibrugarh in T.A. No. 01/2019 upholding the judgment and decree dated 22.01.2019 passed by the learned Civil Judge, Dibrugarh in T.S. No. 65/2017 are liable to be set aside and quashed?

(ii) For that there is a doctrine of part performance as on execution of the registered agreement for sale, the possession was delivered to the plaintiff and the defendants could not execute the sale deed due to non-

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receipt of permission from the Deputy Commissioner and as such cause of action will be from 05.02.2015 and 12.12.2016 and suit is filed within the period of limitation and as such the impugned judgment and decree 28.07.2023 passed by the learned Additional District Judge, Dibrugarh in T.A. No. 01/2019 upholding the judgment and decree dated 22.01.2019 passed by the learned Civil Judge, Dibrugarh in T.S. No. 65/2017 are liable to be set aside and quashed?

Issue notice returnable in four weeks.

The appellant shall take step for service of notice upon the respondent by registered post with AD within three days.

Call for the LCR.

List the matter after four weeks.

JUDGE

Comparing Assistant