Md. Abdur Rezzaque vs Chiren Kumar Sethia @ Mithu Sethia
2024 Latest Caselaw 96 Gua

Gauhati High Court

Md. Abdur Rezzaque vs Chiren Kumar Sethia @ Mithu Sethia on 8 January, 2024

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

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GAHC010287952023




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

                                   Case No. : RSA/1/2024

             MD. ABDUR REZZAQUE
             S/O LATE CHAN MIA,
             RESIDENT OF VILLAGE BARPETA ROAD TOWN, WARD NO. 9, MOUZA
             GOBARDHANA, PO , PS AND DIST BARPETA, ASSAM 781315

             VERSUS

             CHIREN KUMAR SETHIA @ MITHU SETHIA
             S/O LATE KANTI SETHIA, PROPRIETOR OF TOLARAM ANANDA MAL
             CLOTHING SHOP
             RESIDENT OF VILLAGE WARD NO. 5 BARPETA ROAD TOWN, MOUZA
             GOBARDHANA, PO , PS AND DIST BARPETA, ASSAM 781315

Advocate for the Petitioner   : MR. M U MAHMUD

Advocate for the Respondent :

                                    -B E F O R E -

              HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
                                        ORDER

08.01.2024

Heard Mr. M.U. Mahmud, learned counsel appearing for the appellant.

This regular second appeal is admitted for hearing on the following 3(three) substantial questions of law:-

(i) Whether the Ld. 1st Appellate Court was correct in repeatedly Page No.# 2/3

saying that when the properties of land measuring 17 lessas of Lt. Jitendra Kumar Bhattacharjee, were not partitioned among his legal heirs, how his son Tapan Bhattacharjee can see the land measuring 4 ½ lessa to the appellant, when his share in the A Scheduled land is only1/8 out of 17 lessa, covered by Dag No.681, periodic patta no.225 of Barpeta Road Town (A Scheduled land), when there is a judgment and decree pronounced by the Ld. Civil Judge, Barpeta in T.S. No.10/2006 passed in the presence of all the legal heirs of Late Jitendra Kumar Bhattacharjee, stating clearly that they have no claim upon 'B' scheduled land, i.e. 4 ½ Lessas and also confirmed the appellant's possession over the said land, can reopen the issue, when neither of the parties, challenged the said judgment and decree?

(ii) Whether the Ld. 1st Appellate Court has the power to provide relief to an illegal trespasser i.e. the respondent/defendant, who claimed himself to be a tenant of Late Jitendra Kumar Bhattacharjee and thereafter his sons, namely Tapan Bhattacharjee and Swapan Kumar Bhattacharjee and also paid house rents to them, can now claim adverse possession over the said land?

(iii) Whether the Ld. 1st Appellate Court was correct in entertaining the plea of the respondent/defendant of any right, title and interest and adverse possession over the 'C' Scheduled land, when admittedly he was a tenant under Late Jitendra Kumar Bhattacharjee and thereafter his sons?

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Issue notice to the respondent.

The appellant shall take steps for service of notice upon the respondent by registered post with A/D.

Call for the LCR.

List after 4(four) weeks.

JUDGE

Comparing Assistant