Gauhati High Court

Abdul Ali vs Sultan Ali And Ors on 10 March, 2025

                                                               Page No.# 1/12

GAHC010113822024




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

                           Case No. : RSA/178/2024

         ABDUL ALI
         S/O LATE KALOM SHEIKH
         RESIDENT OF VILLAGE KALIKAJARI, MOUZA AND PS MIKIRBHETA, DIST
         MORIGAON, ASSAM



         VERSUS

         SULTAN ALI AND ORS
         S/O LATE NOR HUSSAIN,
         RESIDENT OF VILLAGE KALIKAJARI, MOUZA AND PS MIKIRBHETA, DIST
         MORIGAON, ASSAM

         2:MD. ABDUL SATTAR
          S/O LATE NOR HUSSAIN

         RESIDENT OF VILLAGE KALIKAJARI
         MOUZA AND PS MIKIRBHETA
         DIST MORIGAON
         ASSAM

         3:MD. ALTAB ALI

          S/O LATE NOR HUSSAIN

         RESIDENT OF VILLAGE KALIKAJARI
         MOUZA AND PS MIKIRBHETA
         DIST MORIGAON
         ASSAM

         4:MD. HABIBUR RAHMAN
          S/O LATE NOR HUSSAIN
                                               Page No.# 2/12

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

5:MD. SOFIKUL ISLAM
 S/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

6:MD. SOLEMA KHATUN
 S/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

7:MUSST. ROHIMA KHATUN
 D/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

8:MUSST. SALEMA KHATUN
 D/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

9:MUSST. JELEKHA KHATUN
W/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

10:STRUCK OFF
VIDE HON'BLE COURT'S ORDER DATED 28.01.2025
                                  Page No.# 3/12

11:ABU NASER
 S/O LATE HASEN ALI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

12:ABU EUSUF
 S/O LATE HASEN ALI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

13:ON THE DEATH OF ABU OMAR
 S/O LT. HASEN ALI
 HIS LEGEL HEIRS JEKIRUL ISLAM
 S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

14:FARUK AHMED
 S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

15:MOTIBUR RAHMAN
 S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

16:ANUWARA BEGUM
 D/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
                                       Page No.# 4/12

ASSAM

17:FULJAN NESSA
W/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

18:ON THE DEATH OF HARUN RASHID
 S/O LATE HASEN ALI
 HIS LEGAL HEIRS MUSTT. ASIA KHATUN
 D/O HARUN RASHID

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

19:MUSST. ALEMON NESSA
 D/O HARUN RASHID

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

20:MD. ABDUL MOTIN
 S/O LATE ABDUL BAKKI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

21:MD. ABDUL HANNAN

S/O LATE ABDUL BAKKI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

22:MD. ABDUL MONIN
 S/O LATE ABDUL BAKKI
                                                                             Page No.# 5/12

            RESIDENT OF VILLAGE KALIKAJARI
            MOUZA AND PS MIKIRBHETA
            DIST MORIGAON
            ASSA

Advocate for the Petitioner   : MR. M A SHEIKH, MR. W A SHEIKH,MS F INTAZ

Advocate for the Respondent : MR. D CHOUDHURY (R1-R9), MR. R K SARMA (R1-R9),MR J
DAS (R1-R9),MR T CHAKRABORTY (R1-R9)




             Linked Case : I.A.(Civil)/3031/2024

            ABDUL ALI
            S/O LATE KALOM SHEIKH RESIDENT OF VILLAGE KALIKAJARI
            MOUZA AND PS MIKIRBHETA
            DIST MORIGAON
            ASSAM


             VERSUS

            SULTAN ALI AND ORS
            S/O LATE NOR HUSSAIN
            RESIDENT OF VILLAGE KALIKAJARI
            MOUZA AND PS MIKIRBHETA
            DIST MORIGAON
            ASSAM

            2:MD. ABDUL SATTAR
            S/O LATE NOR HUSSAIN

            RESIDENT OF VILLAGE KALIKAJARI
            MOUZA AND PS MIKIRBHETA
            DIST MORIGAON
            ASSAM

             3:MD. ALTAB ALI

            S/O LATE NOR HUSSAIN

            RESIDENT OF VILLAGE KALIKAJARI
            MOUZA AND PS MIKIRBHETA
            DIST MORIGAON
                                  Page No.# 6/12

ASSAM

4:MD. HABIBUR RAHMAN
S/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

5:MD. SOFIKUL ISLAM
S/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

6:MD. SOLEMA KHATUN
S/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

7:MUSST. ROHIMA KHATUN
D/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

8:MUSST. SALEMA KHATUN
D/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

9:MUSST. JELEKHA KHATUN
W/O LATE NOR HUSSAIN

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
                                  Page No.# 7/12

ASSAM

10:ON THE DEATH OF HASEN ALI
HIS LEGAL HEIRS
ABU BAKKAR SIDDIK

S/O LATE HASEN ALI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

11:ABU NASER
S/O LATE HASEN ALI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

12:ABU EUSUF
S/O LATE HASEN ALI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

13:ON THE DEATH OF ABU OMAR
S/O LT. HASEN ALI
HIS LEGEL HEIRS JEKIRUL ISLAM
S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

14:FARUK AHMED
S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

15:MOTIBUR RAHMAN
                                      Page No.# 8/12

S/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

16:ANUWARA BEGUM
D/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

17:FULJAN NESSA
W/O LATE ABU OMER

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

18:ON THE DEATH OF HARUN RASHID
S/O LATE HASEN ALI
HIS LEGAL HEIRS MUSTT. ASIA KHATUN
D/O HARUN RASHID

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

19:MUSST. ALEMON NESSA
D/O HARUN RASHID

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM

20:MD. ABDUL MOTIN
S/O LATE ABDUL BAKKI

RESIDENT OF VILLAGE KALIKAJARI
MOUZA AND PS MIKIRBHETA
DIST MORIGAON
ASSAM
                                                                    Page No.# 9/12


           21:MD. ABDUL HANNAN

           S/O LATE ABDUL BAKKI

           RESIDENT OF VILLAGE KALIKAJARI
           MOUZA AND PS MIKIRBHETA
           DIST MORIGAON
           ASSAM

           22:MD. ABDUL MONIN
           S/O LATE ABDUL BAKKI

           RESIDENT OF VILLAGE KALIKAJARI
           MOUZA AND PS MIKIRBHETA
           DIST MORIGAON
           ASSAM
           ------------
           Advocate for : MR. M A SHEIKH
           Advocate for : appearing for SULTAN ALI AND ORS



                                BEFORE
             HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                       ORDER

10.03.2025

1. Heard learned counsel Mr. M. A. Sheikh for the appellant.

2. The appellant Md Abdul Ali has filed this appeal as he is aggrieved by the Judgment and Order dated 06.03.2024, passed by the learned Civil Judge, (Sr. Division), Morigaon, Assam in Title appeal No.08/2023.

3. The aforementioned Title Appeal No. 08/2023 was dismissed upholding the Judgment and Order dated 11.08.2023, passed by the learned Civil Judge, (Jr. Division) No.2 dismissing the Title Suit No. 09/2022 preferred by the appellant/plaintiff, Md. Abdul Ali.

4. Heard learned counsel Mr. D. Choudhury for respondent Nos. 1 to 9, Page No.# 10/12

representing the legal heirs of late Nor Hussain.

5. I have considered the submissions at the Bar. It is submitted by the learned counsel for the respondents that there is no substantial question of law to decide this appeal and this appeal is to be dismissed. While preferring the Title Suit, the appellant had concealed that late Aburjan Nessa was survived by three sons. The appellant has not arraigned late Amir Hussain as a party to the suit. The Trial Court as well as the Appellate Court through concurrent judgments have correctly held that this suit is bad for nonjoinder of necessary parties. It has also been correctly held that by the Trial Court as well as the Appellate Court that as the appellant has not described his share of the property, specifically in the plaint, the appellant has failed to prove his case.

6. Learned counsel for the respondents has relied on the decision of the Hon'ble Supreme Court in Jagdish Prasad Patel (Dead) through Legal Representatives and Anr Vs. Shivnath and Ors, reported in (2019) 6 SCC 82, wherein it has been observed that:-

"44. In the suit for declaration of title and possession, the respondent- plaintiffs could succeed only on the strength of their own title and not on the weakness of the case of the appellant-defendants. The burden is on the respondent-plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent-plaintiffs have neither produced the title document i.e. patta-lease which the respondent-plaintiffs are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.

45. Observing that in a suit for declaration of title, the respondent- plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellant-defendants have proved their Page No.# 11/12

case or not, in Union of India v. Vasavi Coop. Housing Society Ltd. 13, it was held as under: (SCC p. 275, para 15) "15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. "

7. Learned counsel for the appellant as well as the learned counsel for the respondents have also relied on the decision of the Hon'ble Supreme Court in Thulasidhara and Anr Vs. Narayanappa and Ors, reported in (2019) 6 SCC 409, wherein it has been observed that:-

" 8. Having gone through the findings recorded by the trial court as well as the first appellate court, it appears that both, the trial court as well as the first appellate court, gave cogent reasons on appreciation of evidence on record, more particularly, the sale deed dated 22-6-1964 (Ext. P-1), document dated 23-4-1971 (Ext. D-4) and subsequent sale deed dated 18-5-1973 (Ext. P-2) and thereafter held that the plaintiff is not entitled to the declaration that he has become the owner. While interfering with the judgment and decree passed by both the courts below, it appears that the High Court has again reappreciated the entire evidence on record, which in exercise of powers under Section 100 CPC, is not permissible. Under the circumstances, the High Court has committed a grave/manifest error in quashing and setting aside the findings recorded by both the courts below, which were on appreciation of evidence on record. The High Court has exceeded in its jurisdiction while exercising the powers under Section 100 CPC."

8. It is submitted by the learned counsel for the appellant that at this juncture, substantial question of law can be framed as this Court may not go into the details and evidence relating to the documents marked as Exhibit-I i.e., the jamabandi. If the issues framed by the learned Trial Court is taken into consideration, it is apparent that no issue was framed if this suit is maintainable for nonjoinder of necessary parties. Thereafter, the Trial Court proceeded to Page No.# 12/12

dismiss the Title Suit 09/2022, for nonjoinder of necessary parties.

9. It is submitted that when Amir Hussain, son of Aburjan Nessa has pre deceased her, the legal heirs of Amir Husain were not necessary parties in the suit and this issue can be framed as substantial question of law.

10. After considering the submissions at the Bar with circumspection, it appears

that the substantial question of law in this case is that :-