Smti. Bhanumati Kalita vs On The Death Of Kalicharan Nath
2024 Latest Caselaw 6360 Gua

Gauhati High Court

Smti. Bhanumati Kalita vs On The Death Of Kalicharan Nath on 30 August, 2024

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GAHC010272412019




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

                           Case No. : RSA/64/2024

         SMTI. BHANUMATI KALITA
         W/O LATE NIRANJAN KALITA,
         R/O VILLAGE RANGAPANI,
         P.O. RANGAPANI, P.S. MERERCHAR (PREVIOUSLY ABHAYAPURI), DIST
         BONGAIGAON, ASSAM

         VERSUS

         ON THE DEATH OF KALICHARAN NATH, HIS LEGAL HEIRS AND ORS
         NAMELY-

         1.1:SMTI SABITRI NATH
         W/O LATE KALICHARAN NATH
         VILLAGE RANGAPANI
          P.O. RANGAPANI
          DIST BONGAIGAON
         ASSAM

         1.2:SRI MADHAB CHANDRA NATH
          S/O LATE KALICHARAN NATH
         VILLAGE RANGAPANI
          P.O. RANGAPANI
          DIST BONGAIGAON
         ASSAM

         1.3:SRI JADHAB CHANDRA NATH
          S/O LATE KALICHARAN NATH
         VILLAGE RANGAPANI
          P.O. RANGAPANI
          DIST BONGAIGAON
         ASSAM

         1.4:SRI JOYDEB CHANDRA NATH
          S/O LATE KALICHARAN NATH
                                                                           Page No.# 2/4

            VILLAGE RANGAPANI
            P.O. RANGAPANI
            DIST BONGAIGAON
            ASSAM

            1.5:SMT REKHA BALA RAY
             D/O LATE KALICHARAN NATH
             R/O VILLAGE BHASAKUTA (CHAKRABHUM)
             P.O. SRIJANGRAM
             P.S. ABHAYAPURI
             DIST BONGAIGAON
            ASSAM

            1.6:SMT RUNU BALA NATH
             D/O LATE KALICHARAN NATH
             R/O VILLAGE RAMPUR
             P.O. SARBHOG
             DIST BARPETA
            ASSAM

            1.7:SMT MINU NATH
             D/O LATE KALICHARAN NATH
             R/O VILLAGE RANGAPANI
             P.O. RANGAPANI
             DIST BONGAIGAON
            ASSAM

            2:SRI ANIRUDDHA ADHIKARY
             S/O SRI MAHENDRA CH. ADHIKARY
             R/O VILLAGE RANGAPANI
             P.O. RANGAPANI
             P.S. MERERCHAR (PREVIOUSLY ABHAYAPURI)
             DIST BONGAIGAON
            ASSAM

            3:STRUCK OFF
            VIDE ORDER DATED 22.03.2024 PASSED IN I.A.(C) NO 780/202



Advocate for the Petitioner   : MR. R K BHUYAN, MR. S A HUSSAIN,MR D J HALOI

Advocate for the Respondent : ,
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                                   BEFORE
                   HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                        ORDER

30.08.2024

Heard Mr. R.K. Bhuyan, learned counsel for the appellant.

2. This regular second appeal, under Section 100 of the Code of Civil Procedure, is directed against the Common Judgment and Decree dated 07.06.2019, passed by the learned Civil Judge, Bongaigaon, in Title Appeal No. 21/2014, arising out of Judgment and Decree dated 27.06.2014, passed by the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 26/2006.

3. It is to be noted here that vide Common Judgment and Decree dated 07.06.2019, the learned Civil Judge, Bongaigaon has dismissed the Title Appeal No. 21/2014, arising out of Judgment and Decree dated 27.06.2014, passed by the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 26/2006.

4. Perused the memo of appeal as well as the grounds mentioned therein and also perused Common Judgment and Decree dated 07.06.2019, passed by the learned Civil Judge, Bongaigaon in Title Appeal No. 21/2014.

5. Having heard the submission of learned counsel for the appellant, this second appeal is admitted on the following substantial questions of law :-

(i) Whether, if there is an oral mortgage of a suit property by taking a loan from the mortgagee, the suit for declaration of right, title and interest and for recovery of possession and injunction is maintainable without seeking the relief of redemption of mortgage as well as returning the loan amount as the mortgagee has acquired the right by way of prescription?

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(ii) Whether, if in the suit, there is an admission that the defendant No. 3 is a raiyot under the plaintiff under that circumstances present suit for declaration of right, title and interest for recovery of possession and injunction is maintainable without seeking the relief under the Assam Temporarily Settled Areas Tenancy Act, 1971?

6. Let notice be issued to the respondents, within a week from today, returnable in 4 weeks, by registered post with A/D and also by usual process.

7. The Registry shall call for the case records of Title Appeal No. 21/2014 from the learned Civil Judge, Bongaigaon.

8. List the matter after 4 (four) weeks on a date to be fixed by the Registry.

JUDGE

Comparing Assistant