Page No.# 1/8 vs Md. Joynul Haque Mazarbhuiyan And 3 Ors
2025 Latest Caselaw 5369 Gua

Gauhati High Court

Page No.# 1/8 vs Md. Joynul Haque Mazarbhuiyan And 3 Ors on 16 June, 2025

                                                                        Page No.# 1/8

GAHC010122432025




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

                           Case No. : CRP(IO)/218/2025

         KHALIL UDDIN LASKAR AND ANR
         S/O- ABDUL NOOR LASKAR, R/O- VILL.- SUDARSHANPUR PART-II, P.O.
         LALA, P.S. LALA, DIST. HAILAKANDI, ASSAM

         2: AMIR UDDIN LASKAR
          S/O- ABDUL NOOR LASKAR
          R/O- VILL.- SUDARSHANPUR PART-II
          P.O. LALA
          P.S. LALA
          DIST. HAILAKANDI
         ASSA

         VERSUS

         MD. JOYNUL HAQUE MAZARBHUIYAN AND 3 ORS
         S/O- LATE JAFOR ALI MAZARBHUIYAN, R/O- VILL.- SUDARSHANPUR
         PART-II, P.O. LALA, P.S. LALA, DIST. HAILAKANDI, ASSAM, PIN- 785155.

         2:MD. SUNAHAR ALI MAZARBHUIYAN
          S/O- LATE JAFOR ALI MAZARBHUIYAN
          R/O- VILL.- SUDARSHANPUR PART-II
          P.O. LALA
          P.S. LALA
          DIST. HAILAKANDI
         ASSAM
          PIN- 785155.

         3:MD. FAZAR ALI MAZARBHUIYAN
          S/O- LATE JAFOR ALI MAZARBHUIYAN
          R/O- VILL.- SUDARSHANPUR PART-II
          P.O. LALA
          P.S. LALA
          DIST. HAILAKANDI
         ASSAM
                                                                       Page No.# 2/8

             PIN- 785155.

            4:MD. KALA RAJA MAZARBHUIYAN
             D/O- LATE JAFOR ALI MAZARBHUIYAN
             R/O- VILL.- SUDARSHANPUR PART-II
             P.O. LALA
             P.S. LALA
             DIST. HAILAKANDI
            ASSAM
             PIN- 785155

Advocate for the Petitioner   : MS. R CHOUDHURY, MD. MEMON AHMED,MS. T BEGUM,MR.
A ROSHID

Advocate for the Respondent : MR. M H RAJBARBHUIYAN, FOR CAVEATOR




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                        ORDER

Date : 16.06.2025

Heard Ms. R. Choudhury, learned counsel for the petitioners. Also heard Mr. M.H. Rajbarbhuiya, learned counsel for the respondents.

2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the correctness or otherwise of the order dated 16.05.2025, passed by the learned Civil Judge (Junior Division) No. 2, Hailakandi, in Title (Ex.) No. 10/2018.

3. It is to be noted here that vide impugned order dated 16.05.2025, the learned Civil Judge (Junior Division) No. 2, Hailakandi ('executing Court', for short) had rejected the petition No. 1017/16, filed by the petitioners/judgment debtors to demarcate share of the judgment debtors as per decree of this Court.

4. Ms. Choudhury, learned counsel for the petitioners submits that two sets of plaintiffs had filed two title suits, being T.S. No. 21/1999 and T.S. No. 16/2001, Page No.# 3/8

against the present petitioners as defendant Nos. 1 and 2, and thereafter, hearing both the parties, the learned trial Court was pleased to dismiss both the suits. Ms. Choudhury also submits that thereafter, the plaintiffs preferred two appeals before the learned Civil Judge (Senior Division), Hailakandi ('first appellate Court', for short), being T.A. No. 23/2003 and T.A. No. 25/2003. But, the learned first appellate Court had allowed both the appeals, vide common judgment and decree dated 29.06.2004, decreeing the plaintiff's right, title, and interest over 11K-2C-8G (including shares of proforma defendant No. 9 to 12) in Schedule (I) and (II) in T.S. No. 16/2001 and also decreed T.S. No. 21/1999 in declaring plaintiff's right, title and interest to the extent of 1K-12Ch in suit Dag No.357.

4.1. Ms. Choudhury further submits that thereafter, the petitioners herein had preferred two second appeals, being RSA No. 26/2005 and RSA No. 27/2005, before this Court, and thereafter, this Court after hearing both the parties was pleased to dismiss the RSA No. 27/2005, but modified the decree of the learned first appellate Court in RSA No. 26/2005 and held that the plaintiffs are entitled to some land in ejmali and the defendants/petitioners herein are also entitled to some land.

4.2. Ms. Choudhury also submits that thereafter, the respondents herein had initiated an execution proceeding, being Title (Ex.) No. 10/2018, before the learned executing Court, wherein the present petitioners had filed one petition No. 1017/2016, for dismissal of the execution proceeding on the ground that only the decree passed by this Court in RSA No.26/2005 is required to be put into execution instead of the present execution proceeding, but the learned executing Court had negated the prayer vide order dated 27.02.2025 and directed the Deputy Collector, Hailakandi to appoint an experienced Amin Page No.# 4/8

Commissioner to cause survey of the suit dag No. 357 and thereafter, demarcate the share of land measuring 1K 12 Ch in favour of the decree holder. Thereafter, the petitioners had filed a petition for modification of the order dated 27.02.2025 and also prayed for survey and demarcation of their land. But, the learned executing Court, vide impugned order dated 16.05.2025, held that it cannot go beyond the decree and being aggrieved, the petitioners have approached this Court by filing the present revision petition.

4.3. Ms. Choudhury, learned counsel for the petitioners also submits that while disposing of the RSA No. 26/2005, this Court had held that the petitioners herein are also entitled to some land and as such, in the execution proceeding, the petitioners herein had filed a petition for issuing direction to the Collector, Hailakandi to conduct survey over the land of Dag Nos. 357, 355 and 356 of Mouza- Sudarshanpur Part-II to demarcate the land of decree holders over an area of 8 katha 1 chattak 18 gonda and the share of judgment debtors over an area of 9 katha 10 chattak 2 gonda. However, the learned executing Court had illegally and arbitrarily dismissed the petition filed by the petitioners, and that the learned executing Court ought to have dealt with the issue raised by the petitioners herein in the execution proceeding, and having refused to do so, the learned executing Court had failed to exercise the jurisdiction under the law, and on such count, the impugned order is illegal and arbitrary, and therefore, it is contended to allow this petition. Ms. Choudhury has also referred to a decision of Hon'ble Supreme Court in Sameer Singh & Anr. vs. Abdul Rab & Ors., reported in (2015) 1 SCC 379.

5. Per contra, Mr. Rajbarbhuiya, learned counsel for the respondents submits that the respondents herein had instituted the title execution proceeding for execution of the decree so passed by the learned first appellate Court and the Page No.# 5/8

decree stands affirmed in the RSA No. 27/2005, and the decree was for 1 katha 12 chattak of land in suit Dag No. 357, and as such, the learned executing Court has rightly dismissed the petition because it cannot go beyond the decree. Mr. Rajbarbhuiya also submits that the suit was filed in the year 1999 and if the impugned order is interfered with, then it will cause serious prejudice to the respondents herein, and therefore, Mr. Rajbarbhuiya has contended to dismiss the petition.

6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 16.05.2025, and the decree passed by the learned trial Court and reversed by the learned first appellate Court.

7. It appears that title suits, being T.S. No. 21/1999 and T.S. No. 16/2001, were filed against the present petitioners as defendant Nos. 1 and 2, by two different sets of plaintiffs. But, both the suits came to be dismissed. Thereafter, the plaintiffs had preferred two appeals before the learned first appellate Court, being T.A. No. 23/2003 and T.A. No. 25/2003. The learned first appellate Court had allowed both the appeals, vide common judgment and decree dated 29.06.2004, decreeing the plaintiff's right, title, and interest over 11K-2C- 8G(including shares of proforma defendant No. 9 to 12) in Schedule (I) and (II) in T.S. No. 16/2001 and also decreed T.S. No. 21/1999 in declaring plaintiff's right, title and interest to the extent of 1K-12Ch in suit Dag No.357. It also appears that hereafter, the petitioners herein had preferred RSA No. 26/2005 and RSA No. 27/2005, before this Court, and thereafter, this Court after hearing both the parties, this Court was pleased to dismiss the RSA No. 27/2005. However, this Court modified the decree of the learned first appellate Court in RSA No. 26/2005 and held that the plaintiffs are entitled to some land in ejmali Page No.# 6/8

and the defendants/petitioners herein are also entitled to some land.

7.1. It further appears that after the decree passed by the learned first appellate Court, having been affirmed, the respondents herein had initiated an execution proceeding, being Title (Ex.) No. 10/2018, before the learned executing Court. The present petitioners then filed objection in said proceeding and prayed for dismissal of the execution proceeding on the ground that only the decree passed by this Court in RSA No.26/2005, is required to be put into execution instead of the present execution proceeding, but the learned executing Court had negated the prayer vide order dated 27.02.2025 and directed the Deputy Collector, Hailakandi to appoint an experienced Amin Commissioner to accompany the bailiff to cause survey of the suit dag No. 357 and thereafter, demarcate the share of land measuring 1K 12 Ch in favour of the decree holder. The petitioners had filed a petition No. 1017/2016 or modification of the order dated 27.02.2025 and also prayed for survey and demarcation of their land. But, the learned executing Court, vide impugned order dated 16.05.2025, held that it cannot go beyond the decree and being aggrieved, the petitioners have approached this Court by filing the present revision petition.

7.2. It also appears that the right of the petitioners' stands affirmed in RSA No. 26/2005 filed against the judgment of the first appellate Court in Title Appeal No. 25/2003, whereby the learned first appellate Court had reversed the finding of the learned trial Court in Title Suit No. 16/2001. While disposing of the RSA No. 26/2005, this Court had held that the plaintiffs are entitled to some land in ejmali and the defendants/petitioners herein are also entitled to some land.

7.3. Thus, it appears that the rights of the petitioners' stands affirmed in RSA No. 26/2005 filed against the judgment of the first appellate Court in Title Page No.# 7/8

Appeal No. 25/2003, whereby the learned first appellate Court had reversed the finding of the learned trial Court in Title Suit No. 16/2001 and the right of the respondents herein stands affirmed in two different proceeding. While the decree for right of the respondents for 1 katha 12 chattak land stands affirmed in RSA No. 27/2005, filed against the judgment of the first appellate Court in T.A. No. 23/2003, which was filed against the judgment and decree passed by the learned trial Court in T.S. No. 21/1999.

7.4. The respondents herein had initiated the execution proceeding, being Title (Ex.) No. 10/2018, before the learned executing Court for execution of the decree to the extent of 1K-12 Ch in suit Dag No.357, being passed in T.A. No. 23/2003, arising out of T.S. No. 21/1999. The right, title, and interest of the petitioners over 11K-2C-8G (including shares of proforma defendant No.9 to 12) in Schedule (I) and (II) land was decreed in T.A. No. 25/2003, arising out of T.S. No. 16/2001 and affirmed in RSA No. 26/2005. For execution of the said decree, the petitioner could have filed separate execution proceeding. Instead, they had opted to file the objection petition, vide petition No. 1017/16 in the execution case being Title (Ex.) No. 10/2018, which seems to be not at all justified. It appears to be an attempt on the part of the petitioners to put a clog in the even course of justice.

8. I have considered the submission of Ms. Choudhury, the learned counsel for the petitioners and also carefully gone through the decision in Sameer Singh & Anr.(supra). There is no quarrel at the Bar about the proposition of law laid down in the said case. But, in the given factual matrix of the case in hand, this Court is of the considered opinion that the ratio laid down in the said case would not be applicable in all force.

Page No.# 8/8

8.1. On the other hand, Mr. Rajbarbhuiya, the learned counsel for the respondents submitted with vehemence that the suit was filed in the year 1999 and the respondents are fighting for more than 25 years and if the impugned order is interfered with, then it will cause serious prejudice to the respondents herein. And I find sufficient force in the submission of Mr. Rajbarbhuiya.

9. Thus, taking note of the submissions of learned counsel for both the parties, and also considering the facts and circumstances on the record, I find no merit in this revision petition, and accordingly, the same stands dismissed with cost of Rs.10,000/ which shall be deposited by the petitioners before the Secretary of District Legal Services Authority, Hailakandi within four weeks from today.

JUDGE

Comparing Assistant