Page No.# 1/7 vs Pronobesh Ghosh
2025 Latest Caselaw 2327 Gua

Gauhati High Court

Page No.# 1/7 vs Pronobesh Ghosh on 27 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                             Page No.# 1/7

GAHC010014292025




                                                       2025:GAU-AS:878

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

                          Case No. : CRP(IO)/25/2025

         SMT RINKU BAGARIA
         D/O- LATE KISHORILAL BAGARIA,
         DHUBRI, ASSAM

         2: SMT CHAMPA BAGARIA ALIAS NEHA
          D/O- LATE KISHORILAL BAGARIA


         BOTH ARE R/O- GAURIPUR WARD NO-3

         P.O AND P.S-GAURIPUR

         DIST-DHUBRI
         ASSAM
         PIN-78333

         VERSUS

         PRONOBESH GHOSH
         S/O- LATE PAREHANAN GHOSH ,
         DHUBRI, ASSAM

         2:SMT GUDDU GHOSH
         W/O- PRONOBESH GHOSH

         BOTH ARE R/O
         WARD NO-3 (OLD)/8 (NEW)

         P.O AND P.S- GAURIPUR
          DIST- DHUBRI
         ASSAM
          PIN-783331
                                                                 Page No.# 2/7

        3:BINOD BAGARIA
         S/O- LATE KISHORI LAL BAGARIA

        R/O- CHOCHEE MAHALA

        P.O- NOHAR
         DIST-HANUMANGARH
         RAJASTHAN

        4:GOPAL BAGARIA
         S/O- LATE KISHORI BAGARIA


        BOTH ARE R/O- GAURIPUR WARD NO-3

        P.O AND P.S-GAURIPUR

        DIST-DHUBRI
        ASSAM
        PIN-783331

        5:SMT SABITA BAGARIA
        W/O- BHAGTI PRASAD AGARWALA

        R/O- NEAR HIGH SCHOOL
        P.O- DALKHOLA
        DIST-UTTAR DHINAJPUR

        PIN-733201

        6:SMT SUNITA BAGARIA
        W/O- LATE BINOD AGARWALA

        R/O- VILLAGE- DHARAMGANJ

        P.O- KISHANGANJ
         DIST- KISHANGANJ
         PIN-73320

For the Petitioners(s)         : Mr. A.C. Sarma, Sr. Advocate
                                 Mr. G. Bharadwaj, Advocate

For the Respondent(s)          : None appears
                                                                       Page No.# 3/7

                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                     ORDER

Date : 27.01.2025

Heard Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. G. Bharadwaj, the learned counsel appearing on behalf of the petitioners.

2. The instant petition has been filed by invoking the jurisdiction under Article 227 of the Constitution of India challenging the order dated 20.11.2024 passed by the learned Court of the Civil Judge (Junior Division) No. 1, Dhubri whereby the learned Trial Court had allowed an application filed by the respondent Nos. 1 and 2 herein to be impleaded as parties to Title Suit No. 426/2010. The petitioners have assailed the instant order on the basis that the respondent Nos. 1 and 2, who are third parties to the said suit cannot be allowed to be impleaded in the said suit proceedings wherein there had been already a preliminary decree being passed and as such, there is a requirement of interfering with the impugned order dated 20.11.2024.

3. This Court finds at this stage relevant to take note of that one Shri Binod Bagaria had instituted a suit being Title Suit No. 426/2010 against the various defendants including the petitionerss herein, who were arrayed as defendant Nos. 3 and 4. The said suit was filed seeking a declaration that their Gift Deed No. 1292 of 2007 was forged, having no legal force and was not binding on the plaintiff; for a declaration that the

plaintiff is entitled to his share of 1/7th in the schedule land along with the shares of all defendants; for a preliminary decree for partition of the property of the schedule be passed as per share of the plaintiff and the Page No.# 4/7

defendants and deliver the possession to the respective parties and for effecting partition in terms of the preliminary decree by Commission/Collector of the State of Assam to be appointed by the Court. It is relevant to take note of that the schedule land so described is a plot of land assessable to revenue.

4. The record further reveals that the said suit was dismissed by the learned Trial Court by the judgment and decree dated 24.08.2015. Being aggrieved, the plaintiff preferred an appeal being Title Appeal No. 65/2015. The said appeal was allowed by the judgment and order dated 09.08.2018. It is however very relevant to observe that the judgment of the learned First Appellate Court was totally contrary to the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908 (for short 'the Code') which mandates that the learned First Appellate Court is required to state the relief to which the appellant was entitled to.

5. Be that as it may, a decree was prepared on the basis of the judgment of the learned First Appellate Court dated 09.08.2018, wherein it is mentioned that the Gift Deed No. 1292 of 2007 was declared to be illegal and not binding on the plaintiff and further that the plaintiff and

the defendants are entitled to 1/6th share each in the Schedule land and partition of the same.

6. One of the defendants being aggrieved by the said judgment and decree passed by the learned First Appellate Court dated 09.08.2018 preferred a Regular Second Appeal being RSA No. 7/2019. The said appeal, however, was withdrawn by the appellant i.e. the defendant No. 1 in the suit. Under such circumstances, the preliminary decree which Page No.# 5/7

was passed by the First Appellate Court dated 09.08.2018 had attained finality.

7. The record further reveals that no steps was taken by the plaintiff before the learned Trial Court for sending the papers to the Collector for giving effect to the preliminary decree. It is under such circumstances, the defendant Nos. 3 and 4 to the suit, who are the petitioners herein, filed an application for passing appropriate orders under Section 54 read with Order XX Rule 18 and Section 151 of the Code. It has been submitted by Mr. A.C. Sarma, the learned Senior Counsel appearing on behalf of the petitioners that the said application is still pending.

8. During the pendency of the said application, the respondent Nos. 1 and 2 herein had filed an application seeking impleadment in the said suit proceedings on the ground that rights over the suit land had also devolved upon the respondent Nos. 1 and 2 on the basis of a deed of sale executed by the defendant No. 2 in the suit being Deed No. 2097 dated 08.09.2016. It has also been claimed by the respondent Nos. 1 and 2 in the said application so filed that they have the title over the land coupled with possession over the suit land and they are a necessary party to the said suit. The petitioners herein filed objections to the said application.

9. It is further relevant to mention that the petitioners herein had also filed a suit being Title Suit No. 196/2023 against the respondent Nos. 1 and 2 and various others whereby the deed of sale on the basis of which the respondent Nos. 1 and 2 had claimed right over the suit land was put to challenge. In the said suit, the respondent Nos. 1 and 2 had also filed a written statement. While the said suit being Title Suit No. 196/2023 is Page No.# 6/7

still pending before the learned Court of the Civil Judge (Junior Division), No. 1, Dhubri, the application so filed by the respondent Nos. 1 and 2 seeking impleadment as parties in Title Suit No. 426/2010 was allowed by the impugned order. It is under such circumstances, that the present petition has been filed.

10. The submissions so made by Mr. A.C. Sarma, the learned Senior Counsel appearing on behalf of the petitionerss is that the respondent Nos. 1 and 2 cannot be arrayed as parties to the said proceedings, taking into account that a preliminary decree had already been passed and the adjudication have attained finality in respect to the right's inter se between the parties.

11 This Court had perused the impugned order. It is seen that the learned Trial Court had duly taken note of that the sale deed which was executed in favour of the respondent Nos. 1 and 2 was during the pendency of the Title Appeal No. 65/2015 and therefore had observed that the same comes within the mischief of Section 52 of the Transfer of Property Act, 1882. The learned Trial Court further observed that as it is a settled law that the preliminary decree can be altered if the Court deems that the rights of other persons who are not parties to the main suit are required to be determined had permitted the respondent Nos. 1 and 2 herein to be impleaded as parties.

12. This Court having perused the observations and findings so made by the learned Trial Court and further taking into account that a preliminary decree does not culminates the suit so filed for partition is of the opinion that the impugned order does not calls for any interference under Article 227 of the Constitution of India. Be that as it may, it is observed that Page No.# 7/7

effect to the preliminary decree, unless challenged in appropriate proceedings, would continue to be binding upon all the parties to the suit, including those claiming under them.

13. With above observations and directions, the instant petition stands dismissed subject to the observations made hereinabove.

JUDGE

Comparing Assistant