Gauhati High Court
Page No.# 1/7 vs Md. Abid Hussain Mazumder And 8 Ors on 11 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/7
GAHC010118772024
2025:GAU-AS:7650
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/195/2024
SALAM AHMED BARBHUIYA
S/O- LATE GULAM AHMED BARBHUIYA,
R/O- N.S. AVENUE, HAILAKANDI ROAD,
WARD NO. 17, P.O. AND P.S.- SILCHAR,
DIST.- CACHAR (ASSAM), PIN- 788005.
VERSUS
MD. ABID HUSSAIN MAZUMDER AND 8 ORS
S/O- LATE KHAYER UDDIN MAZUMDER,
R/O- HAILAKANDI ROAD (KATHAL POINT),
WARD NO. 17, SILCHAR TOWN,
P.O.- RANGIRKHARI, DIST.- CACHAR (ASSAM),
PIN- 788005.
2:MD. ALTAF HUSSAIN MAZUMDER
S/O- LATE KHAYER UDDIN MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 17
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
3:MD. GULANUR HUSSAIN MAZUMDER
S/O- LATE KHAYER UDDIN MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
Page No.# 2/7
WARD NO. 17
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
4:MD. WAHID HUSSAIN MAZUMDER
S/O- LATE KHAYER UDDIN MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 17
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
5:HAMIDA BEGUM MAZUMDER
W/O- LATE KHAYER UDDIN MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 17
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
6:JASHIM UDDIN MAZUMDER
S/O- LATE MUBASSHIR ALI MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 16
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
Page No.# 3/7
7:JAHIR UDDIN MAZUMDER
S/O- LATE MUBASSHIR ALI MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 16
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
8:ZIA UDDIN MAZUMDER
S/O- LATE MUBASSHIR ALI MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 16
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005.
9:JOHURA BEGUM MAZUMDER
D/O- LATE MUBASSHIR ALI MAZUMDER
R/O- HAILAKANDI ROAD (KATHAL POINT)
WARD NO. 16
SILCHAR TOWN
P.O.- RANGIRKHARI
DIST.- CACHAR (ASSAM)
PIN- 788005
Advocate for the Petitioner : Mr. P. K. Roy, Sr. Advocate
Ms. R. Choudhury, Advocate
Advocate for the Respondents : Mr. M. H. Laskar, Advocate
Mr. S. D. Purkayastha
Advocate
Page No.# 4/7
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 11.06.2025
Date of Judgment :11.06.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. P. K. Roy, the learned senior counsel assisted by
Ms. R. Choudhury, the learned counsel appearing on behalf of
the petitioner and Mr. M. H. Laskar, the learned counsel who
appears on behalf of the respondent Nos.1 to 5 as well as Mr. S.
D. Purkayastha, the learned counsel who appears on behalf of
the respondent Nos.6 to 9.
2. The present application has been filed challenging the order
dated 10.05.2024 passed in Misc.(J) Case No.24/2010 arising out
of Title Suit No.16/2012 by the Court of the learned Civil Judge
(Senior Division) No.2 at Silchar (hereinafter referred to as 'the
learned Trial Court') whereby the said Miscellaneous Application
was rejected.
3. It is relevant to take note of that the respondent Nos.1 to 5
in the present proceedings had filed the suit being Title Suit
No.16/2012 before the Court of the learned Civil Judge No. 1,
Cachar at Silchar. Subsequent thereto, the said suit was endorsed
Page No.# 5/7
to the Court of the learned Civil Judge (Senior Division) No.2,
Cachar at Silchar for disposal. In the said suit, various parties
were arrayed including the mother of the petitioner herein as the
proforma defendant No.27.
4. At the outset, Mr. M. H. Laskar, the learned counsel
appearing on behalf of the plaintiffs submitted that the plaintiffs
have no quarrel with the right of the proforma defendant No.27
in respect to 1 katha of land in Dag No.705 of Patta No.321, and
as such, it is submitted by the learned counsel for the plaintiffs
that in the said suit the mother of the petitioner was arrayed as a
proforma defendant No.27.
5. In the backdrop of the above, let this Court now consider
the case of the petitioner. The suit being Title Suit No.16/2012
upon being filed summons were issued. The record reveals that
the summons upon being duly served, the learned Trial Court
vide an order dated 13.03.2012 decided to proceed ex-parte
against the proforma defendants. In the meantime, while the suit
was pending, the proforma defendant No.27 expired on
19.12.2015. Subsequent thereto, after five years on 31.10.2019,
the petitioner filed an application under Order I Rule 8(a) of the
Code of Civil Procedure, 1908 (for short, 'the Code') read with
Order IX Rule 7 and under Section 151 of the Code stating inter-
alia that the service was not properly meted out against the
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proforma defendant No.27 and she died on 19.12.2015, and
under such circumstances, the petitioner be impleaded in the suit
being the legal representative of the proforma defendant No.27
by vacating the ex-parte proceedings and further the petitioner
be allowed to file the written statement for proper adjudication
of the suit. The said application was rejected vide the impugned
order dated 10.05.2024, and it is under such circumstances, the
present application has been filed.
6. This Court has duly taken note of the impugned order dated
10.05.2024 and the reasons so assigned in the opinion of this
Court are not such which this Court feels it necessary to exercise
its supervisory jurisdiction, more so, when the plaintiffs have duly
admitted that the plaintiffs do not claim any right over the 1
katha of land presently in occupation of the petitioner who is the
son of the proforma defendant No.27. Apart from that, it is also
relevant to take note of that in the said suit so filed by the
plaintiffs, the plaintiffs have sought for a preliminary decree
initially and thereupon for passing of a final decree. It is well
settled that when a preliminary decree is passed, the Collector or
any Gazetted Officer subordinate to the Collector deputed by him
has to carry out the necessary enquiries while making the
partition and thereupon a report would be submitted on the basis
of which the final decree would be passed.
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7. This Court is of the opinion that in the eventuality of a
preliminary decree being passed and a proceedings is initiated
before the Collector or any Gazetted subordinate to the Collector
deputed by him in that behalf, the petitioner would obviously
have a right to place his case before the Collector while the said
land is partitioned by metes and bounds.
8. Considering the above, this Court is not interfering with the
impugned order.
9. The interim order passed on 22.07.2024 by which Title Suit
No.16/2012 pending before the Court of the learned Civil Judge
(Senior Division) No.2, Cachar at Silchar was stayed is hereby
vacated and the parties herein, i.e. the respondent Nos.1 to 5 as
well as the respondent Nos.6 to 9 who are duly represented are
directed to appear before the learned Trial Court on 14.07.2025
for further proceedings of the said suit.
10. With the above, the instant petition stands disposed of.
JUDGE
Comparing Assistant
