Page No.# 1/17 vs Dipak Kumar Mazumdar And Ors
2025 Latest Caselaw 2415 Gua

Gauhati High Court

Page No.# 1/17 vs Dipak Kumar Mazumdar And Ors on 28 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/17

GAHC010004652010




                                                          2025:GAU-AS:927

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

                              Case No. : RSA/54/2010

         RINA MAZUMDER and 18 ORS,
         ON THE LEGAL HEIRS OF LATE ANIL MAZUMDAR.

         2: JAY MAZUMDAR SON


         3: SANJAY MAZUMDAR SON


         4: SOME DEY

         W/O GAUTAM DEY. 1A TO 1C ARE R/O THANA LANE DHUBRI 1 D OF VILL.
         SULKAPARA
         P.O. NAGRAKATA
         DIST. JALPAIGURI
         WEST BENGAL.

         5: RUMA DHAR

          W/O ARUP DHAR OF VILL. SANTINAGAR
          P.S. AND DIST. DHUBRI.

         6: DILIP KUMAR DAS



         7: NILU DAS

          BOTH ARE SONS OF LATE KHITISH CHANDRA DAS
          R/O WARD NO. 2
          RABINDRA SARANI POUND RAD
          P.O. and P.S. AND DIST. DHUBRI.

         8: SMTI DIPALI DAS
                                                      Page No.# 2/17


W/O NARAYAN CHANDRA DAS.

9: NARAYAN CH. DAS

S/O LATE AMULYA DAS
BOTH RESPONDENT NO. 4 AND 5 ARE RESIDENT OF WARD NO. VI
D.K. ROAD
P.O.
P.S. AND DIST. DHUBRI.

10: DIPAK KUMAR DAS @ TAPAN DAS

S/O RAI MOHAN DAS
C/O EXBT. PRINTER
D.K. ROAD
DHUBRI
P.O.
P.S. and DIST. DHUBRI.

11: SMTI ILA GHOSE

W/O TAPAN KR. GHOSE
R/O DHUBRI TOWN C.R. DAS ROAD
WARD NO. VII
DHUBRI
P.O.
P.S. and DIST. DHUBRI.

12: PRADYUT KUMAR NEOGI

S/O LATE PHANI NEOGI
R/O WARD NO. VI JAKSON ROAD P.O.
P.S. and DIST. DHUBRI

13: HARIPADA DAS

S/O BALARAM DAS.

14: HIMANGSHU BAIN

S/O LATE RAM CHANDRA BAIN.

15: SMTI RINA CHAKRABORTY

W/O GAURANGA CHAKRABORTY.

16: ASHOK KUMAR SARMA
                                                       Page No.# 3/17


S/O RAM LAKHAN SARMA.

17: SANTI LAL JAIN

S/O LATE NONI HANDRA JAIN.

18: SIDIP KUMAR NAG



19: SANDIP KUMAR NAG

BOTH 5I AND 5J ARE SONS OF LATE SUDHIR KUMAR NAG
ALL ARE RESPONDENT 5D AND 5J ARE RESIDENT OF DHUBRI D.K. ROAD
P.O.
P.S. and DIST. DHUBRI

VERSUS

DIPAK KUMAR MAZUMDAR and ORS
ON THE DEATH LEGAL HEIRS OF LATE SUKUMAR MAZUMDAR.

2:DILIP MAZUMDAR



3:SMTI BELA RANI MAZUMDAR.


4:SMTI JAYA SARKAR

W/O SRI S. SARKAR.

5:SMTI MALLIKA DAS

W/O SRI KALYAN DAS
R/O COOCH BIHAR DEBI BARI WEST BENGAL
THE RESPONDENTS PLAINTIFF NO. 1 AND 2 ARE THE SONS AND
APPELLANT PLAINTIFF NO. 3 IS THE WIFE AND APPELLANT PLAINTIFF
NO.4 AND 5 ARE THE DAUGHTERS. THE RESPONDENTS PLAINTIFF NO. 1
2 AND 3 ARE RESIDENT OF DHUBRI RESPONDENT PLAINTIFF NO. 4 IS
THE RESIDENT OF CALCUTTA AND RESPONDENT PLAINTIFF NO. 5 IS
RESIDENT OF COOCH BIHAR PLAINTIFF RESPONDENT NO. 4 AND 5
BEING REPERSENTED BY THEIR ATTORNEY SHRI DIPAK KUMAR
MAZUMDAR
                                                              Page No.# 4/17

Advocate for the Appellants   : Ms. F. Ahmed, Advocate

Advocate for the Respondents : Mr. J. Deka, Advocate
                               Mr. S. K. Deka, Advocate
                               Mr. A. Sarma, Advocate


                                  BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                        Date of Hearing     : 28.01.2025

                        Date of Judgment    : 28.01.2025
                      JUDGMENT AND ORDER (ORAL)

Heard Ms. F. Ahmed, the learned counsel appearing on behalf of the appellants. Mr. J. Deka, the learned counsel appears on behalf of the respondents.

2. This is an Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree dated 26.11.2008 passed by the Court of the Civil Judge, Dhubri (hereinafter referred to as 'the First Appellate Court') in Title Appeal No.2/2002 whereby the Appeal filed was allowed thereby setting aside the judgment and decree dated 21.06.2004 passed by the learned Civil Judge (Junior Division) No.2, Dhubri (hereinafter referred to as 'the learned Trial Court') in Title Suit No.315/1993.

3. It is seen from the records that vide an order dated Page No.# 5/17

21.06.2010, the Coordinate Bench of this Court had admitted the instant Appeal by formulating the three substantial questions of law which are reproduced therein under:

1. Whether the suit of the plaintiffs is barred under Section 154 (1)

(m) read with Section 23 (2) of the Assam land & Revenue Regulation, 1886?

2. Whether the learned lower Appellate Court erred in law in reversing the Trial Court judgment without dealing with the issue of limitation more particularly when the learned Trial Court held the suit to be barred by limitation?

3. Whether the suit of the plaintiffs is liable to be dismissed for non-compliance of the provisions of Order VII Rule 3 of the Code of Civil Procedure?

4. The question arises in the instant proceedings as to whether the three substantial questions of law which were formulated by this Court vide an order dated 21.04.2010 are involved in the instant Appeal. To appreciate and adjudicate the said aspect of the matter, this Court finds it relevant to take note of the brief facts which led to the filing of the instant Appeal.

5. From the records, it reveals that a suit being Title Suit No.315/1995 was filed by the plaintiffs claiming a declaration of right, title and interest of the plaintiffs over the plot of land described in the Schedule to the plaint; for demarcation of the Page No.# 6/17

boundaries of the plaintiffs' land in Dag No.41 of Patta No.694 thereby demarcating the said land from Dag No.35 of Patta No.695 and making division of the land as per the Dag Numbers;

for delivery of khas possession of the boundary measuring about 6 ½ lechas to have been given to the defendant Nos.2, 3 & 4 by the defendant No.1 on the eastern boundary of Dag No.41 by executing the Sale Deed; for declaration that the Sale Deed so executed in favour of the defendant No.2, 3 & 4 are inoperative; for a decree to send to the Collector for making division of the boundaries according to the share of the land where the plaintiffs will get 1 katha 11 lechas of the land in Dag No.41 in Patta No.694 and the defendants would get land measuring 3 kathas 2 lechas covered by Dag No.35 of Patta No.695 etc.

6. The case of the plaintiffs in brief was that the predecessors of the plaintiffs one Sukumar Muzundar as well as the defendant No.1 were brothers and had inherited certain property from their father one Late Rajani Kanta Mazumdar. It is the case of the plaintiffs that the predecessors of the plaintiffs and subsequently the plaintiffs were in possession of Dag No.41 of Patta No.694 which is the Schedule land. The land of the defendant No.1 was on the adjacent east of the plaintiffs' land which is covered by Dag No.35 in Patta No.695 measuring 3 kathas 2 lechas. It was alleged that the defendant No.1 tried to obstruct the Page No.# 7/17

demarcation of the boundary in the year 1985 when the predecessors of the plaintiffs tried to demarcate the boundary of Dag No.41 and it resulted in filing of a suit by the defendant No.1 being Title Suit No.342/1985. The said suit, however, was dismissed for default vide an order dated 08.08.1991. It is the further case of the plaintiffs that the defendant No.1 sold some land from the western portion of the Dag No.35 which was adjacent to the land of the plaintiffs to the defendant Nos.2, 3, 4 & 5 and the plaintiffs were apprehensive that in that process, the defendant No.1 would hand over certain portion of the land belonging to the plaintiffs in the garb of selling land in Dag No.35. The plaintiffs had also apprehended that the defendant No.1 may also sell off some portion of Dag No.41 which belongs to the plaintiffs. It is under such circumstances, the Sale Deed which was executed in favour of the defendant Nos.2, 3, 4 & 5 have been said to be inoperative in law and such action on the part of the defendants have created a cloud on the rights of the plaintiffs over the Schedule land. It is under such circumstances, the plaintiffs had sought for reliefs as above mentioned.

7. It is seen that the defendants have filed their written statement. The defendant No.1 in the written statement had raised various issues as regards the maintainability of the suit. It was averred by the said defendant that the land of Dag No.35 Page No.# 8/17

admeasuring 3 kathas 2 lechas was the land of the defendant No.1 alone and there are other three pattadars along with the defendant No.1. It is further mentioned in the written statement that the defendant No.1 had sold out the land to the defendant Nos.2, 3 & 4 from Dag No.35 and not Dag No.41 which belonged to the plaintiffs. It was further mentioned that there was no justifiable ground of apprehension that the defendant Nos.2 to 5 may encroach upon the land of Dag No.41 by purchasing from the defendant No.1.

8. The defendant Nos.2 & 3 had also filed their written statement wherein various preliminary objections were taken. It was stated in their written statement that the defendant No.1 sold 4.90 lechas to the defendants vide the registered Sale Deed No.946 of 1993 from Dag No.35 of Patta No.695. It was further mentioned that the said defendants and the predecessors were tenants under defendant No.1 for more than 35 years and they have exclusively possessed the land. It was further mentioned that the defendants had no knowledge about the obstruction in demarcation or filing of any suit by the defendant No.1. It was further denied that the defendant No.1 had sold some land admeasuring 6 ½ to 7 lechas in Dag No.41 to be sold to these defendants and that had created any cloud on the plaintiffs' right. The apprehension of the plaintiffs was that the defendants Page No.# 9/17

would be handed over the possession of the plaintiffs was also denied. Be that as it may, in paragraph No.12 of the written statement, the defendant Nos.2 & 3 had made a bald allegation that they are in possession of the land under their occupation in own rights and adverse to the interest of the plaintiffs. On the basis of the pleadings on 16.12.1994, eight issues were framed. Subsequently, vide another order dated 16.07.1996, another issue was framed. The nine issues so framed are reproduced herein under:-

1. Whether the suit is maintainable in its present form and manner?

2. Whether the suit is bad for want of cause of action?

3. Whether the suit is barred by law of limitation?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the suit is not properly valued and court fees are not accordingly paid?

6. Whether this court has pecuniary jurisdiction to try the suit?

7. Whether the plaintiff is entitled to get the decree as prayed for?

8. To what other relief(s) are the parties entitled to?

9. Whether the plaintiffs have right, title and interest over the S/Land and/or whether the defendants are the owner of the S/Land by adverse possession?

Page No.# 10/17

9. On behalf of the plaintiffs, five witnesses were examined and the plaintiffs exhibited 10 documents. On behalf of the defendants, only the defendant No.3 adduced evidence and he exhibited documents which were marked from Exhibit Nos.A to Q. It is further relevant to take note of that during the pendency of the suit, the learned Trial Court had sought for a report from the Amin Commission vide an order dated 02.05.1995. The reported of the Amin Commission was submitted and the same was accepted without any objection. It is relevant to take note of that in the said Amin Commission's report as has been duly recorded in the orders of both the learned Trial Court and the First Appellate Court, it was mentioned that the land in Dag No.35 and Dag No.41 were demarcated in presence of the parties and as per the record, the total land under Dag No.41 was 1 katha 11 lechas (by north- 66 feet; south-62 feet; east-66 feet and west 72 ½ feet). It was also mentioned that the plaintiffs were actually in occupation of land measuring 1 katha 3 ½ lechas (by north-47 feet, south-49 feet; east 66 feet and west-72 ½ feet). On the basis thereof, it was stated that the land measuring 7 ½ lechas under Dag No.41 was in possession of the defendants. In the said report, it was also mentioned that the land in Dag No.35 admeasured 3 kathas 2 lechas (by north-119 feet; south-117 feet; east-60 feet and west-66 feet). But the Page No.# 11/17

defendants were in possession of more than 3 kathas 2 lechas. Therefore, as per the Amin Commission's report, it was observed that the defendants were in illegal possession of 7 ½ lechas under Dag No.41 belonging to the plaintiffs.

10. This Court further finds it relevant to take note of that the learned Trial Court dismissed the suit vide the judgment and decree dated 18.10.2021. Being aggrieved, an Appeal was preferred being Title Appeal No.2/2002. The learned First Appellate Court vide the judgment and order dated 21.06.2004 had set aside the judgment and decree passed by the learned Trial Court and remanded the suit back to the learned Trial Court to decide as regards the possession of the parties of the suit by appointing an Amin Commission. Being aggrieved by the judgment and order dated 21.06.2004 passed in Title Appeal No.2/2002, an Appeal was preferred in terms of Section 104 read with order XLIII, Rule 1(u) of the Code which was registered and numbered as Misc. Appeal No.4/2008. The learned District Judge, Dhubri vide the order dated 16.06.2008 set aside the judgment and order dated 21.06.2004 taking into account that there was already an Amin Commission's report which was accepted by both the parties. Subsequent thereto, the learned First Appellate Court passed the impugned judgment and decree dated 06.11.2008 thereby reversing the judgment and decree Page No.# 12/17

passed by the learned Trial Court dated 18.10.2001 and further decreed the suit of the plaintiffs by declaring that the plaintiffs had right, title and ownership over the suit land and that the plaintiffs are further entitled to recovery of the land measuring 7 ½ lechas under Dag No.41 by evicting the defendants therefrom. It is under such circumstances that the present Appeal has been filed.

11. In the backdrop of the above, let this Court deal with the substantial questions of law which were formulated vide the order date 21.04.2010.

12. The first substantial question of law which was formulated pertains to whether the suit filed by the plaintiffs was barred under Section 154 (1) (m) read with Section 23(2) of the Assam Land and Revenue Regulation, 1886. This Court has duly taken note of that the suit was filed for declaration of right, title and interest of the plaintiffs over the suit land as described in the plaint and further seeking recovery of possession. Under such circumstances, in the opinion of this Court, the suit of the plaintiffs cannot be said to be barred under the provisions of Section 154 (1) (m) read with Section 23(2) of the Assam Land and Revenue Regulation, 1886. In that view of the matter, the first substantial question of law so formulated is not involved in the instant Appeal.

Page No.# 13/17

13. The second substantial question of law pertains to whether the learned First Appellate Court erred in reversing the judgment of the learned Trial Court without dealing with the issue of limitation, more particularly, when the learned Trial Court held that the suit is barred by limitation. It is relevant to take note of that the issue of limitation which was Issue No.3 was intrinsically connected to Issue No.9 which dealt with as to whether the defendants are the owner of the suit land by way of adverse possession. The learned First Appellate Court while deciding the said Issue No.9 had duly dealt with the issue of limitation and had come to a finding that there was no adverse possession of the defendants over any part of the suit land. Under such circumstances, the second substantial question of law so formulated is not involved in the instant Appeal.

14. The third substantial question of law pertains to whether the suit of the plaintiffs was liable to be dismissed for non- compliance of the provisions of Order VII Rule 3 of the Code. It is relevant to take note of that the plaintiffs had duly in the plaint described the suit land in respect of which declaration was sought for. In so far as the question of recovery of possession, the plaintiffs have mentioned that an area of 6 ½ to 7 lechas land was encroached by the defendants. In that regard, the plaintiffs had sought for specific demarcation in the reliefs to Page No.# 14/17

assert in the exact area of the 6 ½ to 7 lechas of land. This Court further finds it relevant to take note of that vide an order dated 02.05.1995, the learned Trial Court had appointed an Amin Commissioner for survey of the lane and on the basis thereof, a report was submitted which was duly accepted by the learned Trial Court on 06.01.1996.

15. This Court has in the previous segments of the instant judgment duly noted the findings of the report of the Amin Commissioner wherein it was categorically opined that the defendants have encroached upon 7 ½ lechas of land belonging to the plaintiffs with specific details. This Court further finds it relevant to take note of the judgment of the Supreme Court in the case of Prativa Singh and Another vs. Shanti Devi Prasad and Another, reported in (2003) 2 SCC 330 wherein the Supreme Court categorically observed that in terms with Order VII Rule 3 of the Code, the subject matter of the suit which is an immovable property, the plaint should contain a description of the property sufficient to identify it. It was observed that if the plaintiff committed any error, the defendant should have objected to it promptly. The Supreme Court further went to observe that if there is a default or carelessness of the parties, it does not absolve the learned Trial Court of its obligations to address the said defect while scrutinizing their plaint and pointed Page No.# 15/17

out the omission on the part of the plaintiff and should have insisted on a map of the immovable property forming the subject matter of the suit being filed. It is further observed that if there remains a defect in the court records in view of overlooking the provisions contained in Order VII Rule 3 as well as Order XX Rule 3 of the Code, the same is capable of being cured in as much as a successful plaintiff should not be deprived of the fruits of the decree. The Supreme Court observed that in such cases resort should be taken in terms with Section 152 or Section 47 depending on the facts and circumstances of each case. Paragraph Nos.15 and 17 of the said judgment being relevant is reproduced herein under:-

"15. Order 7 Rule 3 CPC requires where the subject-matter of the

suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the court to draw a proper decree as required by Order 20 Rule 3 CPC. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of RS Plot No. 595 and having seen the maps annexed with the registered sale deeds of the defendant judgment- debtors we are clearly of the opinion that Sub-plots Nos. 595/I and 595/II were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of Page No.# 16/17

settlement or survey. The plaintiffs ought to have filed the map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to it promptly. The default or carelessness of the parties does not absolve the trial court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming the subject-matter of the suit being filed. This is the first error.

17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case -- which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC."

Page No.# 17/17

16. Taking into account the above law laid down by the Supreme Court, it cannot be therefore said that the plaintiffs should be non-suited for having not specifically described the 6 ½ or 7 lechas of land which the plaintiffs had sought for recovery of possession, more so, when the learned Trial Court had appointed an Amin Commissioner and specifically the land was identified from the Amin Commissioner's report which was accepted without any objection. Under such circumstances, the third substantial question of law so formulated is not involved in the instant appeal.

17. Consequently, this Court does not find any merit in the instant Appeal for which the instant Appeal stands dismissed with cost quantified as Rs.11,000/-. In addition to that, the plaintiffs should be entitled to costs throughout the proceedings.

18. The Registry is directed to return the records to the Courts below.

JUDGE

Comparing Assistant