Page No.# 1/8 vs Saiful Islam And 31 Ors
2025 Latest Caselaw 666 Gua

Gauhati High Court

Page No.# 1/8 vs Saiful Islam And 31 Ors on 2 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/8

GAHC010001822025




                                                             2025:GAU-AS:7154

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

                          Case No. : RSA/80/2025

         TAIZUDDIN
         S/O. LT. SUBURUDDIN, R/O. VILL.- KHANDARKUR, P/O. BETBARI, DIST.
         BARPETA, ASSAM, PIN-781327.



         VERSUS

         SAIFUL ISLAM AND 31 ORS
         S/O. LT. KABIR MOLLA

         2:SURJYA BEGUM @ SAHERA BEGUM
         W/O. LT. KABIR MOLLA
          BOTH ARE R/O. VILL.- KHANARKUR
          MOUZA-BETBARI
          P/O. AND DIST. BARPETA
         ASSAM
          PIN-781327.

         3:MIA CHAND KHAN
          S/O. LT. KAER KHAN
          R/O. VILL.- KHANARKUR
          P/O. BETBARI
          DIST. BARPETA
         ASSAM
          PIN-781327.

         4:HAZERA BEGUM
          D/O. LT. KABIR MOLLA
          R/O. VILL. KHANDARKUR
          P/O. BETBARI
          DIST. BARPETA
         ASSAM
          PIN-781327
                                            Page No.# 2/8


5:ILIZA BEGUM
 D/O. LT. KABIR MOLLA
 R/O. VILL. AMRISHNAGAR
 DIST. BAKSA
 BTR
ASSAM
 PIN-781364

6:PRIMAL ROY
 S/O. LT. JOGENDRA MOHAN ROY

7:SHYAMAL ROY
 S/O. LT. JOGENDRA MOHAN ROY
 R/O. VILL.- DANGARKUCHI
 P/O. GHILAZARI
 DIST. BARPETA
 PIN-781316.

8:BIMAL CHANDRA ROY
 S/O. MAHENDRA MOHAN ROY

9:AMAL ROY
 S/O. MAHENDRA MOHAN ROY

10:PABAN ROY
 S/O. MAHENDRA MOHAN ROY

11:SHRABAN ROY
 S/O. MAHENDRA MOHAN ROY

12:PRABHABATI ROY
 D/O. MAHENDRA MOHAN ROY

13:LILABATI ROY
 D/O. MAHENDRA MOHAN ROY

14:DHARITRI ROY
 SL. NO. 8 TO 14 ARE R/O. VILL.- KALJHAR
 P/O. BETBARI
ASSAM
 PIN-781327.

15:MOHIMUDDIN
 S/O. LT. SAYED ALI
 R/O. AZAD NAGAR
 DANGARKUCHI
 P/O. GHILAZARI
                                          Page No.# 3/8

DIST. BARPETA
ASSAM
PIN-781316

16:HALIM KHAN
 S/O. ABDUL KADER
 R/O. VILL.- KHANDARKUR
 MOUZA-BETBARI
 P/S. AND DIST. BARPETA
ASSAM
 PIN-781327.

17:JAHURA KHATUN
 HEIRS OF LAT SAHEB ALI

18:RAMERA BEGUM
 HEIRS OF LAT SAHEB ALI

19:SAHERA BEGUM
 HEIRS OF LAT SAHEB ALI

20:FUL BANU AHMED
 HEIRS OF LAT SAHEB ALI

21:ANNA AHMED
 HEIRS OF LAT SAHEB ALI

22:JABED ALI
 HEIRS OF LAT SAHEB ALI

23:ABED ALI
 HEIRS OF LAT SAHEB ALI

24:ABUL KALAM AZAD
 HEIRS OF LAT SAHEB ALI
 SL. NO. 17-24 ARE R/O. VILL. BANDAKUR
 P/O. BETBARI
 DIST. BARPETA
ASSAM
 PIN-781327.

25:SAHED KHAN
 S/O. LT. KADER KHAN

26:SAMAD ALI SIKDAR
 S/O. SANU SIKDAR

27:SUFIA KHATUN
                                                              Page No.# 4/8

          W/O. ABUS SAMAD

         28:ADALAT KHAN
          S/O. LT. RAHMAN KHAN

         29:ABUL HUSSAIN
          S/O. CHAND MIA

         30:RAMEZUDDIN
          S/O. RIAZUDDIN

         31:ASAM ALI
          S/O. LT. MAINUDDIN

         32:JAINAL ALI
          S/O. LT. NAYEB ALI
          SL. NO. 25-32 ARE R/O. VILL.- KHANDARKUR
          P/O. BETBARI
          DIST. BARPETA
         ASSAM
          PIN-78132



Advocate for the Appellant       : Mr. S. Das, Advocate

Advocate for the Respondents : Mr. N. Hoque, Advocate



                                  BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                      Date of Hearing        : 02.06.2025

                      Date of Judgment        : 02.06.2025
                  JUDGMENT AND ORDER (ORAL)

Heard Mr. S. Das, the learned counsel appearing on behalf of the appellant. Mr. N. Hoque, the learned counsel appears on Page No.# 5/8

behalf of the respondent Nos.1 & 2.

2. This Court vide an order dated 26.05.2025 had admitted the instant Appeal by formulating a substantial question of law which reads as under:-

Whether the learned Courts below were justified after coming to a satisfaction that the plaintiffs were entitled to 2 Kathas of land out of the Schedule A land to declare specifically the right, title and interest over the Schedule B (1) land without effecting partition that too when admittedly, the plaintiffs were not in possession of the Schedule B (1) land?

3. The question which arises in the instant Appeal as to whether the substantial question of law which has been formulated by this Court under Section 100(4) of the Code of Civil Procedure, 1908 (for short, 'the Code') is involved in the instant Appeal.

4. This Court has duly heard the learned counsel appearing on behalf of the appellant as well as the learned counsel appearing on behalf of the respondent Nos.1 & 2. The substantial question of law so formulated is only on the aspect as to whether there is a requirement of a modification of the decree passed by the learned Trial Court which has been upheld by the learned First Appellate Court only to the extent of specifying the entitlement of the plaintiffs in respect to Schedule-B(1) which is specified Page No.# 6/8

with boundaries. Taking into account that the concurrent findings of facts so arrived at by the learned Courts below is that the plaintiffs have right, title and interest over 2 kathas of land which is a part of the Schedule-B land and the plaintiffs are also not in possession of the Schedule-B(1) land, it is the opinion of this Court that there is a requirement of modification of the decree so passed by the learned Trial Court dated 25.11.2019 in Title Suit No.81/2016 which has been affirmed by the judgment and decree dated 05.10.2024 in Title Appeal No.5/2021. The modification which is required is that the plaintiffs have right, title and interest over 2 kathas of land which is included in Schedule-B to the plaint.

5. Accordingly, this Court therefore is of the opinion that the substantial question of law is duly involved in the instant Appeal, and accordingly, the impugned judgment and decree so passed by the learned Trial Court dated 25.11.2019 in Title Suit No.81/2016 and affirmed by the learned First Appellate Court vide the judgment and decree dated 05.10.2024 passed in Title Appeal No.5/2021 stands modified as herein under:-

(i) The plaintiffs have right, title and interest over 2 kathas of land which is a part of the Schedule-B land.

(ii) The plaintiffs are entitled to partition the said 2 kathas Page No.# 7/8

of land which is a part of the Schedule-B land by creation of a separate Dag and Patta Number in their names.

(iii) Accordingly, this Court issues precept to the Deputy Commissioner, Barpeta to partition the Schedule-B land and thereby creating a separate Dag and Patta Number in the names of the plaintiffs of an area admeasuring 2 kathas.

(iv) Upon making the partition, the Deputy Commissioner, Barpeta or any officer so authorized to carry out the partition shall submit a report in terms with Section 54 of the Code to the learned Trial Court, i.e. the Court of the learned Munsiff No.1, Barpeta. On the basis of the said report, the learned Trial Court, i.e. the Court of the learned Munsiff No.1, Barpeta shall pass the final decree as regards separate possession and recovery thereof in favour of the plaintiffs.

(v) The learned Trial Court shall further pass any further relief or reliefs as deem fit as has been prayed in the suit.

(vi) The Registry shall forthwith prepare the preliminary decree and forward the same to the Deputy Commissioner, Barpeta and the Deputy Commissioner, Barpeta shall ensure to carry out the partition either by himself or through an officer duly authorized within the period of 6(six) months Page No.# 8/8

from the date of receipt of the said decree.

6. With the above observations and directions, the instant Appeal stands disposed of.

JUDGE

Comparing Assistant