Gauhati High Court
Jadab Das vs Swapna Das And 3 Ors on 7 February, 2025
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GAHC010049942024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/50/2024
JADAB DAS
S/O LATE GULUK DAS @ GULUK NADIAL,
RESIDENT OF VILLAGE MORI ERAGAON, WARD NO. 06, PO , PS AND DIST
MORIGAON, ASSAM
VERSUS
SWAPNA DAS AND 3 ORS
D/O LATE RADHA DAS AND SHANTI DAS,
RESIDENT OF VILLAGE MORI ERAGAON, WARD NO. 06, PO , PS AND DIST
MORIGAON, ASSAM
2:SMTI PURNIMAI DAS
D/O LATE RADHA DAS AND SHANTI DAS
RESIDENT OF VILLAGE MORI ERAGAON
WARD NO. 06
PO
PS AND DIST MORIGAON
ASSAM
3:SMTI. MANI DAS
D/O LATE RADHA DAS AND SHANTI DAS
RESIDENT OF VILLAGE MORI ERAGAON
WARD NO. 06
PO
PS AND DIST MORIGAON
ASSAM
4:SMTI SAHABI DAS
W/O LATE RATNESWAR DAS
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RESIDENT OF VILLAGE MORI ERAGAON
WARD NO. 06
PO
PS AND DIST MORIGAON
ASSAM
5:SRI THANESWAR DAS
HUSBAND OF ADAMAI DAS
RESIDENT OF VILLAGE MORI ERAGAON
WARD NO. 06
PO
PS AND DIST MORIGAON
ASSAM
6:SMTI MINU TERON
W/O SRI MANESWAR TERON
RESIDENT OF VILLAGE MORI ERAGAON
WARD NO. 06
PO
PS AND DIST MORIGAON
ASSA
Advocate for the Petitioner : MR. D C C PHUKAN, MS D DEVI
Advocate for the Respondent : ,
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
ORDER
07.02.2025
Heard Mr. D.C.C. Phukan, learned counsel for the appellant.
This appeal under Section 100 of the Code of Civil Procedure, 1908 is directed
against the judgment dated 12.12.2023 and decree dated 21.12.2023 passed by the
learned Civil Judge (Senior Division), Morigaon, in Title Appeal No.03/2020. It is to be
noted here that vide impugned judgment and decree dated 12.12.2023 and 21.12.2023,
the learned Civil Judge (Senior Division), Morigaon has dismissed the Title Appeal
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No.03/2020 and thereby upheld the judgment and decree dated 14.02.2020 and
25.02.2020 passed by the learned Munsiff No.2, Morigaon, in Title Suit No.27/2014, by
which the learned Trial Court has dismissed the appellant/plaintiff's suit.
Mr. Phukan, learned counsel for the appellant submits that the appellant as plaintiff
had instituted a title suit, being Title Suit No.27/2014 for a decree of declaration of
ownership right over the suit land and for recovery of khas possession and permanent
injunction restraining the defendants, their men, agents, their persons claiming through
then from entering into the suit land, the cost of the suit and other reliefs in respect of
the Schedule-'A' land, measuring 1 bigha 10 lecha covered by Annual Patta No.152, Dag
No.638, situated at Morigaon Town Revenue kissamat.
Mr. Phukan further submits that in the said title suit the respondents herein as the
defendants filed written statement and contested the suit of the plaintiff and thereafter,
hearing learned Advocates of both the parties, the learned Munsiff No.2, Morigaon, was
pleased to dismiss the same. Thereafter, the appellant herein preferred one title appeal,
being Title Appeal No.03/2020 and during the course of hearing of the Title Appeal, the
appellant herein, had filed one petition on 11.02.2022, under Order 41 Rule 27 of the CPC
praying for production of additional evidence on behalf of the appellant/plaintiff. But, the
learned First Appellate Court vide order dated 11.02.2022, held that the said petition will
be heard along with the appeal. But, at the time of hearing of the appeal, the learned
First Appellate Court had never heard the appellant on the aforementioned petition and
the petition remained undisposed of.
Mr. Phukan further submits that the aforementioned petition was filed to examine
the Lat Mandal and to produce the relevant documents to show that the land of the
plaintiff was converted from periodic patta to annual patta land with new dag number and
patta number. And since without affording an opportunity to the appellant, the learned
First Appellate Court had disposed of the appeal and decided Issue Nos.4 and 5 against
the appellant herein, serious prejudice is caused to him and as such, substantial questions
of law as suggested in the memo of appeal are involved herein and therefore, it is
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contended to admit the appeal.
Having heard the submission of learned counsel for the appellant, I have carefully
gone through the memo of appeal and the grounds mentioned therein and also the
impugned judgment and decree dated 12.12.2023 and 21.12.2023, the learned Civil
Judge (Senior Division), Morigaon, in Title Appeal No.03/2020 as well as the judgment
and decree dated 14.02.2020 and 25.02.2020 passed by the learned Munsiff No.2,
Morigaon, in Title Suit No.27/2014 and the petition under Order 41 Rule 27 CPC, dated
11.02.2022, wherein the appellant herein prayed for allowing him to examine Lat Mandal
and to produce relevant documents to prove conversion of suit land from periodic patta
land to annual patta land with new dag and patta number.
It appears that in the order dated 11.02.2022, the learned First Appellate Court has
ordered that the petition will be heard at the time of hearing of the Title Appeal. But,
having gone through the impugned judgment and decree dated 12.12.2023 and
21.12.2023, this Court finds that the learned First Appellate Court has not at all
considered the petition and decided the Issue Nos.4 and 5.
In that view of the matter, this appeal is admitted on the following substantial
question of law:-
Whether the finding of the learned First Appellate Court in respect
of Issue Nos.4 and 5 is perverse for being decided without
considering the petition filed by the appellant herein under Order
41 Rule 27 of the CPC on 11.02.2022 for adding additional evidence?
This Court may consider framing of additional substantial question of law if found
necessary at the time of hearing after notifying the parties.
Issue notice to the respondents, returnable within 4(four) weeks.
Step be taken by registered post with A/D and also by usual process within a week
from today.
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Registry shall call for the records from the learned Courts below.
List the matter after 4(four) weeks.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
