Md Nizam Uddin @ Rajam Uddin vs Wasir Ali And 4 Ors
2025 Latest Caselaw 5660 Gua

Gauhati High Court

Md Nizam Uddin @ Rajam Uddin vs Wasir Ali And 4 Ors on 24 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010111602016




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

                           Case No. : RSA/135/2016

         MD NIZAM UDDIN @ RAJAM UDDIN
         S/O LATE TAYEB ALI, R/O VILL. RANGABAK BAJEMARA, P.S
         KATLICHERRA, P.O KATLICHERRA, DIST. HAILAKANDI, ASSAM.



         VERSUS

         WASIR ALI and 4 ORS
         S/O LATE TAYEB ALI

         2:KUTIFUL NESSA

          W/O LATE TAYEB ALI

         3:NAMOR ALI

          S/O LATE TAYEB ALI

         4:JAHURA KHATUN

          D/O LATE TAYEB ALI

         5:SARIFUL NESSA

          D/O LATE TAYEB ALI
          ALL ARE R/O VILL. DHOLAI MOLAI PT-I
          P.S. and P.O. KATLICHERRA
          DIST. HAILAKANDI
          ASSAM
Advocate for the Appellant      : Mr. J. Laskar, Advocate

Advocate for the Respondents : Mr. M. J. Quadir, Advocate
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                            BEFORE
     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                  Date of Hearing         : 24.06.2025

                  Date of Order           : 24.06.2025
                             ORDER

Heard Mr. J. Laskar, the learned counsel appearing on behalf of the appellant and Mr. M. J. Quadir, the learned counsel who appears on behalf of the respondents.

2. The instant Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree passed by the learned Court of the Civil Judge, Hailakandi (hereinafter referred to as 'the learned First Appellate Court') dated 24.02.2016 whereby the Title Appeal No.11/2015 was dismissed and the judgment and decree passed by the learned Court of the Munsiff No.2, Hailakandi (hereinafter referred to as 'the learned Trial Court') in Title Suit No.87/2010 dated 17.07.2015 was affirmed.

3. It is seen that the learned Coordinate Bench of this Court vide the order dated 13.05.2016 had admitted the instant Appeal by formulating two substantial questions of law which being relevant is reproduced herein under:-

1. Whether the suit of the plaintiff is maintainable in view of bar Page No.# 3/10

under Section 154 of the Assam Land and Revenue Regulation Act, 1886 in view of absence of the prayer of declaration of title?

2. Whether the impugned judgments and decrees are vitiated for non-compliance of the provision of Order XX Rule 18 of the Code of Civil Procedure?

4. The question therefore arises as to whether the two substantial questions of law arise in the instant Appeal. In so far as the first substantial question of law, it pertains to as to whether the suit of the plaintiff was maintainable in view of the bar contained under section 154 of the Assam Land and Revenue Regulation, 1886 in view of the absence of the prayer of declaration of title, in the opinion of this Court, does not arise at all taking into account that the plaintiff who is the respondent No.1 in the instant Appeal had sought for the relief for declaration of his title in respect to his share of the suit land as would be apparent from Clause (d) of the reliefs so sought for in the plaint. Therefore, the first substantial question of law cannot be said to be involved in the instant Appeal.

5. The second substantial question of law relates to as to whether the judgments passed by the learned Trial Court as well as the learned First Appellate Court stands vitiated for non-compliance with the provision of Order XX Rule 18 of the Code.

6. For the purpose of ascertaining the same, it is relevant to take Page No.# 4/10

note of the brief facts which led to the filing of the instant Appeal.

7. For the purpose of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court.

8. The respondent No.1 herein as plaintiff had instituted the suit being Title Suit No.87/2010 before the learned Trial Court seeking a decree for imperfect partition in respect to the land of the plaintiff's share; a precept be issued to the Collector on the basis of the preliminary decree and thereupon to pass a final decree. The plaintiff also sought for a decree for handing over the possession of his share by the Amin Commission. Apart from that, the plaintiff sought for a decree for declaration of his title in respect to his share of the suit land.

9. The case of the plaintiff in short is that one Taiyab Ali Laskar who was the father of the plaintiff as well as the predecessor-in- interest of the principal defendant No.1 to 5 and the proforma defendant Nos.6 to 9 was the owner of 6 bighas of land covered by

Dag No.78/490 of 2nd R.S. Patta No.114 of Mouza-Dholai Molai Part-I. The plaintiff's case is that the plaintiff along with the principal defendants and the proforma defendants were in joint possession of 2 bighas 18 kathas 5 chattaks of land which has been specifically described in the Schedule to the plaint and the plaintiff has been requesting the principal defendants as well as the proforma defendants for partition since the month of January, Page No.# 5/10

2009. However, both the principal defendants and the proforma defendants did not adhere to the said request, and it is under such circumstances, the suit was filed.

10. The defendant Nos.1 to 5 filed their written statement stating inter-alia that out of the 6 bighas of land which was owned by Late Taiyab Ali Laskar, he had sold 1 bigha 1 katha 11 chattaks of land by a registered Deed of Sale No.401 dated 04.07.1991 in favour of one Ismail Ali. Thereupon, Late Taiyab Ali Laskar sold 2 bighas of land in Dag No.78/490 and 1 bigha 12 kathas 12 chattaks in Dag No.490/555 to the defendant No.1 vide the registered Sale Deed No.1356 dated 31.12.1997. Apart from that, another plot of land admeasuring 1 bigha 5 kathas 9 chattaks which was left out and was sold to the defendant No.2 vide an unregistered Deed of Sale dated 30.03.1998, and therefore, there was no land left for partition. It is under such circumstances prayed that the suit was required to be dismissed.

11. An additional written statement was also filed by the defendant No.1 to 5 after the amendment of the plaint wherein it was denied that the plaintiff along with the principal defendants and the proforma defendants were in joint possession of 2 bighas 18 kathas 5 chattaks of land.

12. On the basis of the pleadings, the learned Trial Court framed as many as five issues which being relevant is reproduced herein Page No.# 6/10

under:-

(i) Is there any cause of action for the suit?

(ii) Whether Late Taiyab Ali died about 10-12 years ago leaving behind the suit land as the joint property of the plaintiffs and the defendants?

(iii) Whether the plaintiff has right, title and interest over the suit land?

(iv) Whether the plaintiff is entitled to any decree as prayed for?

(v) To what relieves are the plaintiff entitled?

13. The plaintiff examined three witnesses and on behalf of the defendants, three witnesses were also examined. The plaintiff exhibited the Jamabandi as Exhibit-1 which was also exhibited by the defendants as Exhibit-A. Further to that, the defendants exhibited the Deed of Sale bearing Deed No.1356 as Exhibit-C; the unregistered Sale Deed as Exhibit-E and Exhibit-F to Exhibit-F17 which were the revenue paying receipts.

14. The learned Trial Court while deciding the Issue No.(ii) after taking into account the evidence on record and further holding that the sale which was made vide the registered Deed of Sale bearing Deed No.1356 dated 31.12.1997 was only in respect to 2 bighas of land from Dag No.78/490 and vide the unregistered Sale Deed made in favour of the defendant No.2 had not effected the immovable property as the said document was an unregistered Page No.# 7/10

document came to a finding that the total land available for partition amongst the plaintiff, principal defendants as well as the proforma defendants was 2 bighas 18 kathas 5 chattaks. Accordingly, the learned Trial Court decreed the suit on contests with cost against the defendants and further declared the title of the plaintiff over 2 bighas 18 kathas 5 chattaks of land under Dag No.78/490 of Patta No.114 and further ordered that the plaintiff shall be delivered with khas possession over his share of land on partition by the Amin Commission. The learned Trial Court further directed drawing up of the preliminary decree.

15. Being aggrieved, the defendant Nos.1 to 5 preferred an Appeal which was registered and numbered as Title Appeal No.11/2015. The learned First Appellate Court by accepting the reasons so assigned by the learned Trial Court, affirmed the judgment and decree passed by the learned Trial Court vide the impugned judgment and decree dated 24.02.2016, and it is under such circumstances, the present proceedings have been filed.

16. In the backdrop of the above, let this Court now consider as to whether the second substantial question of law is duly involved in the instant Appeal. It would be seen that both the learned Trial Court as well as the learned First Appellate Court committed an error in not deciding the shares of the plaintiff viz-a-viz the principal defendants and the proforma defendants though it was a Page No.# 8/10

categorical admitted case of the plaintiff that the plaintiff as well as the principal defendants and the proforma defendants had co- ownership rights over 2 bighas 18 kathas 5 chattaks of land. It was therefore the incumbent duty on the part of the learned Trial Court as well as the learned First Appellate Court to ascertain the shares amongst the plaintiff, principal defendants as well as the proforma defendants in respect to the suit land and thereupon could have directed the Collector to act in terms with Section 54 of the Code. This having been not done, in the opinion of this Court, was contrary to the provision of Order XX Rule 18 of the Code.

17. Accordingly, it is therefore the opinion of this Court that the second substantial question of law is duly involved.

18. This Court further finds it relevant to take note of that for the purpose of deciding the shares amongst the plaintiff, the principal defendants and the proforma defendants, there would be requirement of appreciating the evidence. This Court being the Second Appellate Court, it would not be proper to appreciate the evidence.

19. Accordingly, this Court taking into account that the instant Appeal has been pending for almost a decade, exercises the power under Order XLI Rule 25 of the Code frames a specific issue on the aspect as to what would be respective share of the plaintiff, the principal defendants as well as the proforma defendants. The Page No.# 9/10

specific issue framed is as under:-

"What would be the respective shares of the plaintiff, the defendant Nos.1 to 5 and the proforma defendant Nos.6 to 9 in respect to the suit land, i.e. 2 bighas 18 kathas 5 chattaks ?"

20. This Court further restores the Title Appeal No.11/2015 only for the limited purpose for ascertaining the shares of the plaintiff, the principal defendants and the proforma defendants and directs both the parties in terms with Order XLI Rule 26A of the Code to appear before the learned First Appellate Court, i.e the learned Court of the Civil Judge (Senior Division), Hailakandi on 04.08.2025.

21. For the sake of clarity, this Court had not interfered with the impugned judgment and decree dated 24.02.2016 which affirmed the judgment and decree passed by the learned Trial Court dated 17.07.2015 except to the limited extent that both the Courts failed to ascertain the respective shares of the parties to the suit in respect to the suit land for which a specific issue has been framed above. The learned First Appellate Court therefore shall only decide the specific issue framed above and submit its findings before this Court within 45 days from the date of appearance of the parties, i.e. w.e.f. 04.08.2025.

22. The Registry is directed to forthwith send the LCR(s) to the learned Court of the Civil Judge (Senior Division), Hailakandi Page No.# 10/10

ensuring that the records are available before the learned First Appellate Court priot to the date fixed above.

23. The matter be again listed before this Court on 04.11.2025.

JUDGE

Comparing Assistant