Page No.# 1/7 vs Smti. Sandhya Rani Baidya And 4 Ors
2025 Latest Caselaw 3532 Gua

Gauhati High Court

Page No.# 1/7 vs Smti. Sandhya Rani Baidya And 4 Ors on 27 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/7

GAHC010004052010




                                                             2025:GAU-AS:2259

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

                              Case No. : RSA/11/2010

         SHIHAB UDDIN SIDDIQUEE and 2 ORS
         S/O LATE MOMTAJ UDDIN SIDDIQUEE, R/O VILL. HARINAGAR, P.O. and P.S.
         PATHARKANDI, DIST. KARIMGANJ, ASSAM.

         2: AMIR UDDIN

          S/O LATE MAKADDAS ALI
          R/O VILL. MANIKPARA
          PARGANA-PRATAPGARH
          P.S. PATHERKANDI
          DIST. KARIMGANJ
          ASSAM.

         3: MUSTT. RUKIA BIBI

          D/O LATE MAKADDAS ALI
          R/O VILL. MANIKPARA
          P.O. and P.S. PATHERKANDI
          DIST. KARIMGANJ
          ASSAM

         VERSUS

         SMTI. SANDHYA RANI BAIDYA and 4 ORS
         W/O LATE MAKHAN KUMAR BAIDYA.

         2:MIHIRLAL BAIDYA

          S/O LATE MAKHAN KUMAR BAIDYA.

         3:SMTI MIRA RANI BAIDYA

          D/O LATE MAKHAN KR. BAIDYA.
                                                              Page No.# 2/7

          4:MOHITOSH BAIDYA

          S/O LATE MAKHAN BAIDYA
          ALL ARE R/O VILL. HARINAGAR
          P.O. and P.S. PATHERKANDI
          DIST. KARIMGANJ
          ASSAM.

          5:SUDHIR BAIDYA @ SUDHIR CHANDRA BAIDYA

          S/O LATE SURYAMANI BAIDYA
          R/O VILL. HARINAGAR
          P.O. and P.S. PATHERKANDI
          DIST. KARIMGANJ
          ASSAM




                                BEFORE
               HON'BLE MR. JUSTICE DEVASHIS BARUAH


        Advocate for the appellant(s) : Mr. N Haque


        Advocate for the respondent(s): Mr. B Malakar


        Date of hearing & judgment      : 27.02.2025



                         JUDGMENT & ORDER (ORAL)

Heard Mr. N Haque, the learned counsel appearing on behalf of the appellants. Mr. B Malakar, the learned counsel appears on behalf of the respondent Nos.1 to 4.

Page No.# 3/7

2. Before taking up the instant appeal for adjudication, this Court first would like to take note of a very pertinent aspect as regards the maintainability of the instant appeal. It is seen from the plaint that there were 5(five) plaintiffs, who jointly filed the suit seeking declaration of their ejmali rights over the suit land and for confirmation of their joint possession; for declaration that the document No.1075 of 2000 executed by the defendant Nos.2 and 3 in favour of the defendant No.1 as well as the document No.1302 of 2000 executed by the defendant Nos. 1, 2 and 3 are false, forged, fraudulent, illegal, inoperative and accordingly liable to be set aside and cancelled and for issuance of appropriate precept and further for permanent injunction restraining the principal defendants from entering into the suit land and from dispossessing the plaintiff.

3. The case of the plaintiffs is that on the basis of a deed of sale bearing deed No. 4454 of 1968 executed on 23.07.1968 by two persons, namely Makaddas Ali and one Musabir Ali, the suit land was transferred in favour of the predecessor- in-interest of the plaintiff Nos. 1 to 4 and the plaintiff No.5. Though it has been mentioned in the plaint that there was a partition amongst Late Makhan Kumar Baidya and his brothers, but it was also mentioned that the plaintiff and the co- plaintiff (i.e. the plaintiff No. 5) utilized a part of the suit land for the purpose of manufacturing of bricks for domestic uses and also produced potatoes in the suit land. It was the case of the plaintiffs that the defendants had no right over the suit land and the defendant Nos.2 and 3 had illegally executed a sale deed being Deed No.1075/2000 in favour of the defendant No.1 and thereupon another document was executed by the defendant Nos.1, 2 and 3. The plaintiff further alleged that the defendants were trying to disturb the possession of the plaintiffs.

Page No.# 4/7

4. Pursuant to the filing of the suit which was registered as Title Suit No. 33/2001, the defendant Nos. 1, 2 and 3 had submitted a joint written statement wherein they claimed that the suit land originally belonged to Makaddas Ali, who was the father of the defendant Nos. 2 and 3, who then by a deed of sale bearing Deed No. 2227 dated 24.06.1955, transferred it to his wife, namely, Alsuma Bibi (since deceased). It was the further case of the defendants that as Makaddas Ali had already transferred the suit land in favour of his wife vide the Deed of Sale dated 24.06.1955, the plaintiffs could not had accrued any right on the basis of the deed of sale dated 23.07.1968, which was at a later point of time. It was also mentioned in the written statement that pursuant to the Deed of Sale of the year 1955, the defendant Nos. 2 and 3 transferred the suit land in favour of the defendant No.1. On the basis of the pleadings, as many as four issues were framed.

5. The Issue No. 2 pertained to as to whether the plaintiffs had ejmali right, title and interest and possession over the suit land and the Issue No. 4 pertained to as to whether the document No. 1075 of 2000 and 1302 of 2000, dated 06.04.2000 and 12.05.2000 respectively were illegal and liable to be set aside.

6. The learned Trial Court vide its judgment and decree dated 18.10.2004 decreed the suit in favor of the plaintiffs and in that process declared that the defendant Nos. 2 and 3 had no legal right to execute the deeds of sale No. 1075 of 2000 and 1302 of 2000, dated 06.04.2000 and 12.05.2000 respectively in Page No.# 5/7

favour of the defendant No.1. It was also declared that the said deeds of sale were illegal, void and liable to be set aside.

7. Being aggrieved, the defendant Nos. 1, 2 and 3 preferred an appeal against the plaintiffs which included the co-plaintiff. The said appeal was registered and numbered as Title Appeal No.84/2004. The said appeal was dismissed vide the judgment and decree dated 18.04.2009 and it is under such circumstances that the instant appeal has been preferred.

8. It is relevant to take note of that the instant appeal was also filed against all the plaintiffs, including the co plaintiff (plaintiff No.5). The information as to the death of the respondent No. 5, who was the plaintiff No.5 was brought to the attention of the appellants. However, the learned counsel appearing on behalf of the Appellants on 02.12.2011 had informed this Court that the Appellants would not like to substitute the respondent No.5 (plaintiff No.5).The question, therefore, arises at this stage as to whether this Court can entertain the present appeal and decide on the said substantial question of law, which was formulated by this Court on 27.12.2012. It is further relevant to take note of that this question was kept open by this Court at the time of formulating the substantial question of law in its order dated 27.01.2012.

9. This Court had duly heard the learned counsels appearing on behalf of the parties on this point of maintainability of the Appeal. Upon giving a due consideration to the materials on record and the submissions so made by the learned counsels for the parties, it is seen that the judgment and decree dated Page No.# 6/7

18.10.2004 passed by the learned Trial Court is a decree in favour of all the plaintiffs, whereby right, title and interest over the suit land was granted in favour of the plaintiffs, and further there was a declaration that the deeds of sale executed by the defendant Nos. 2 and 3 in favour of the defendant No.1 and as well as the rectification Deed executed by defendant Nos. 1, 2 and 3 were illegal and void and accordingly were cancelled. This decree was affirmed by the learned First Appellate Court.

10. Now, the question before this Court is as to whether this decree so passed in favour of the plaintiffs can be severed or in other words having allowed a decree in favour of the plaintiff No.5 to attain finality, can this Court set aside the decree against the plaintiff Nos.1 to 4? In the opinion of this Court, if this Court interferes with the judgment and decree passed by the learned First Appellate Court, it would result in two conflicting decrees, inasmuch as, there would be a decree granting right, title and interest in favour of the plaintiffs and the cancellation of the Sale Deed and Rectification Deed which had attained finality and on the other hand, there would not be any decree.

11. In the opinion of this Court, the judgment and decree so passed by the learned Trial Court which had been further affirmed by the learned First Appellate Court, having attained finality insofar as the co-plaintiff is concerned, this Court cannot adjudicate or decide as regards the legality and validity of the judgment and decree dated 18.04.2009 passed by the learned First Appellate Court. Accordingly, in the opinion of this Court, the instant appeal cannot be maintained, for which, the same stands dismissed.

Page No.# 7/7

12. Registry shall send back the records.

JUDGE

Comparing Assistant