Gauhati High Court

2: Ishab Nabi vs Fatema Khatun And 5 Ors on 12 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/16

GAHC010044102024




                                                             2025:GAU-AS:2670

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

                           Case No. : RSA/29/2025

         ON THE DEATH OF RAJAB ALI HIS LEGAL HEIRS AND ORS
         NAMELY-

         1.1.1: HABIZA KHATUN
         W/O LATE MAJIBUR RAHMAN
          RESIDENT OF VILLAGE SILPUKHURI
          PO AND MOUZA SILPUKHURI
          PS MIKIRBHETA
          DIST MORIGAON
         ASSAM

         1.1.2: MD. SAHIDUL ISLAM
          S/O LATE MAJIBUR RAHMAN
          RESIDENT OF VILLAGE SILPUKHURI
          PO AND MOUZA SILPUKHURI
          PS MIKIRBHETA
          DIST MORIGAON
         ASSAM

         1.1.3: MD. MOHIDUL ISLAM
          S/O LATE MAJIBUR RAHMAN
          RESIDENT OF VILLAGE SILPUKHURI
          PO AND MOUZA SILPUKHURI
          PS MIKIRBHETA
          DIST MORIGAON
         ASSAM

         1.1.4: MD. FARIDUL ISLAM
          S/O LATE MAJIBUR RAHMAN
          RESIDENT OF VILLAGE SILPUKHURI
          PO AND MOUZA SILPUKHURI
          PS MIKIRBHETA
          DIST MORIGAON
         ASSAM TO BE REP. BY THEIR MOTHER NO. 1.1
                                                      Page No.# 2/16


1.1.5: MISS SAHNAZ BEGUM
 /O LATE MAJIBUR RAHMAN
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM TO BE REP. BY THEIR MOTHER. 1.1

1.2: ISHAB NABI
 S/O LATE RAJAB ALI RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

2: ON THE DEATH OF MEHER ALI
 SON OF LATE KETU BEPARI
 HIS LEGAL HEIR
 NAMELY-

2.1: BABUL HUSSAIN
 S/O LATE MEHER ALI
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

2.2: MAINUL HUSSAIN
 S/O LATE MEHER ALI
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

3: ON THE DEATH OF RUPJAN
 DAUGHTER OF LATE KETU BEPARI
 HIS LEGAL HEIRS
 NAMELY-

3.1: ABDUL JALIL
 S/O LATE RUPJAN RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM
                                                   Page No.# 3/16


3.2: FULKAN
 S/O LATE RUPJAN RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

3.3: HIPJUR
 S/O LATE RUPJAN RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

3.4: AMINUL
 S/O LATE RUPJAN RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

3.5: NAZBUL
 S/O LATE RUPJAN RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

4: MANGALJAN
 D/O LATE KETU BEPERI
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

5: JARIMAN NESSA
 D/O LATE KETU BEPARI
VILLAGE RAUMARI
 MOUZA BATADRABA
 PO TUKTUKI
 PS DHING
 DIST NAGAON
ASSAM

6: TAHERA KHATUN
 D/O LATE KETU BEPARI
                                                       Page No.# 4/16

VILLAGE KUBAIKATA MOUZA BATADRABA
PO DHANIBHETA
PS BATADRABA
DIST NAGOAN
ASSAM

7: SAMINA KHATUN
 D/O LATE KETU BEPARI
 RESIDENT OF VILLAGE RAUMARI MOUZA BATADRABA
 PO RAUMARI
 PS DHING
 DIST NAGAON
ASSA

VERSUS

FATEMA KHATUN AND 5 ORS
W/O MD. SURHAB ALI, RESIDENT OF VILLAGE SILPUKHURI, PO AND
MOUZA SILPUKHURI, PS MIKIRBHETA, DIST MORIGAON, ASSAM

2:MD. SURHAB ALI
 S/O HATEM ALI
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

3:MD. ABU SAMA
 DEED WRITER
 RESIDENT OF VILLAGE SILPUKHURI
 PO AND MOUZA SILPUKHURI
 PS MIKIRBHETA
 DIST MORIGAON
ASSAM

4:MD. HANIF ALI

S/O NABAB ALI
RESIDENT OF VILLAGE SILPUKHURI
PO AND MOUZA SILPUKHURI
PS MIKIRBHETA
DIST MORIGAON
ASSAM

5:MD. SIRAJ ALI

S/O LATE KETU BEPARI
                                                    Page No.# 5/16

      RESIDENT OF VILLAGE SILPUKHURI
      PO AND MOUZA SILPUKHURI
      PS MIKIRBHETA
      DIST MORIGAON
      ASSAM

     6:MD. MIRAJ ALI
      S/O LATE KETU BEPARI
      RESIDENT OF VILLAGE SILPUKHURI
      PO AND MOUZA SILPUKHURI
      PS MIKIRBHETA
      DIST MORIGAON
     ASSAM

     7:ON THE DEATH OF KANAK CH. SARMA
      HIS LEGAL HEIRS
      NAMELY-

     7.1:LAKHYA JYOTI SARMA
      S/O LATE KANAK CH SARMA
      RESIDENT OF JAJORI SIMULTAL
      MOUZA - SILPUKHURI
      DIST - MORIGAON
     ASSAM

     7.2:MANU SARMA
      D/O LT KANAK CH SARMA
     RESIDENT OF JAJORI SIMULTAL
      MOUZA - SILPUKHURI
      DIST. - MORIGAON
     ASSA




                                BEFORE
             HON'BLE MR. JUSTICE DEVASHIS BARUAH



Advocate for the appellant(s)   : Mr. RK Bhuyan


Advocate for the respondent(s) :    Mr. L Mohan
                                                                         Page No.# 6/16



     Date of hearing                    : 12.03.2025
     & Judgment


                         JUDGMENT & ORDER (ORAL)

Heard Mr. RK Bhuyan, the learned counsel appearing on behalf of the appellant. Mr. L Mohan, the learned counsel appears on behalf of the respondents.

2. This is an appeal filed challenging the judgment and decree dated 07.10.2023 passed in Title Appeal No. 14/2019 passed by the learned Civil Judge (Senior Division), Morigaon (hereinafter to be referred to as, "the learned First Appellate Court") whereby the judgment and decree dated 05.08.2019 passed by the Court of the learned Civil Judge (Jr. Division) No.1, Morigaon (hereinafter to be referred to as, "the learned Trial Court") in Misc (J) Case No.7/2016 arising out of Title Execution Case No.16/2015 was confirmed.

3. The instant appeal is being taken up at the stage of Order XLI, Rule 11 of the Code of Civil Procedure, 1908 (for short, the Code) to ascertain as to whether in the instant appeal there are substantial questions of law which can be formulated in terms of Section 100 (4) of the Code. For ascertaining the said aspect, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

Page No.# 7/16

4. One Kanak Chandra Sarma, who has been arrayed as the respondent No.7 in the instant appeal had filed a suit against the defendants which was registered and numbered as Title Suit No. 52/2010 before the Court of the learned Munsiff No.1, Morigaon. In the said suit, the said Kanak Chandra Sarma sought for a decree declaring his right title and interest over the suit land described in Schedule B to the plaint and for confirmation of possession; a decree declaring that the sale deed No.291 dated 02.02.2010 is null and void and liable to be cancelled; a permanent injunction restraining the principal defendants, their agents, servants, etc from entering into the suit land; for a decree declaring that the Chitha mutation order dated 04.02.2010 passed by the Circle Officer is liable to be cancelled etc.

5. It is relevant to mention that the suit land is a Schedule B land in the plaint which ad measures 4 kathas covered by Dag No. 659 of periodic patta No.322 of village Silpukhuri, Kissam under Mouza Silpukhuri in the district of Morigaon, Assam.

6. The principal defendants filed their written statement-cum counter claim. In the said written statement the case of the plaintiff was denied. In addition to that, the principal defendants supported the deed of sale bearing deed No.291 dated 02.02.2010. On the basis thereof, the principal defendants filed a counter claim seeking the reliefs for declaring that the principal defendant No.1 has right, title and interest over the Schedule X land. It is relevant to take note of that the Schedule X land is the Schedule B land to the plaint. In addition to that the counter-claimant also sought for a decree for recovery of khas possession Page No.# 8/16

over the Schedule X land and for a decree of permanent injunction. It is notable to take note of that in the said suit, the proforma defendants were Md. Siraj Ali and Md. Miraj Ali, who were arrayed as sons of Late Ketu Bepari. This aspect of the matter is relevant which would be seen at the later stages of the instant judgment.

7. Against the counter-claim, the plaintiffs filed their written statement.

8. On the basis of the said pleadings, as many as 10(ten) issues were framed by the learned Trial Court. On behalf of the plaintiffs in the said suit, 3(three) witnesses were examined and on behalf of the defendant, 4(four) witnesses were examined. The learned Trial Court by the judgment and decree dated 28.11.2014 dismissed the suit and decreed the said counter-claim in favour of the principal defendants. No appeal their against was filed and as such the said judgment and decree dated 28.11.2014 passed in Title Suit No.52/2010 attained finality.

9. Subsequent thereto, the appellants herein filed an application under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure, 1908, resisting the execution of the said decree. It is relevant to take note of that the entire claim of the appellants in the said application is that the land under Annual Patta No. 5 (54) in Dag No. 553 belonged to one Nandeswar Sarmah which contained a plot of land ad measuring 3 bighas. A plot of land ad measuring 1 bigha 2 kathas 10 lechas, out of the 3 bighas under Dag No.553 was possessed by Ketu Bepari as a tenant and the Government of Assam had Page No.# 9/16

issued the khatian as tenant in the name of Ketu Bepari as Rayoti Khatian No. 17 and subsequently it was renumbered as Rayoti Khatian No. 25. The said Ketu Bepari till his death was possessing the aforesaid land by performing all the terms and conditions as mentioned in the Khatian.

10. It was the case of the appellants, who were the petitioners that after the death of Ketu Bepari, the petitioners have been possessing that land contained in the Khatian No. 25 peacefully by performing the terms and conditions contained in the Rayoti Khatian. It was the further case of the petitioners that the respondent No.7 herein, who was a very cunning person and he in collusion with the Revenue Staff of Mikirbheta Revenue Circle, converted the Annual Patta No. 5 (54) in Dag No. 553 to periodic patta. In that process, Dag No. 553 was bifurcated into two Dags, by changing the class by the Revenue Staff namely Dag Nos.660 and 658. The said Dag No. 660 contained an area of land measuring 1 bigha 1 katha and Dag No.658 contained four kathas only and the total two bighas of land were converted to periodic patta. It was further mentioned that the said Kanak Chandra Sarmah sold the land to the decree holder without delivery of possession by practicing fraud.

11. It was further mentioned that the said Kanak Chadra Sarmah filed Title Suit No.52/2010 and the principal defendant No.1 also filed a counter claim and she got a decree for recovery of khas possession concealing the fact that the entire land contained in AP No. 5 (54) of Dag No.553 was under the possession of the tenant. It was, therefore, the case of the petitioners, who are the appellants herein that they are protected tenants as they are the legal heirs of Page No.# 10/16

Ketu Bepari.

12. The said application so filed was registered and numbered as Misc. (J).Case number 7/2016. The decree holders thereupon filed a written objection denying the contents of the said application. Thereupon, the record further reveals that the appellants herein have filed their examination-in-chief of three witnesses, but the learned Trial Court had expunged the evidence of two witnesses on the ground that they did not appear.

13. It is very pertinent to mention that the learned Executing Court further formulated 3(three) points for determination which were:

(i). Whether the possession of the petitioner is protected under the Assam (Temporarily Settled Areas) Tenancy Act, 1971?

(ii). Whether the petitioners are entitled to the reliefs claimed for?

(iii). If so, to what other relief or reliefs, the petitioners are entitled to?

14. The learned Executing Court decided the points for determination against the petitioners holding inter alia that the possession of the petitioners are not protected under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 . It is pertinent to mention herein that the learned Executing Court opined that the petitioners could not prove that they had any relation with Ketu Bepari.

15. Being aggrieved, an appeal was preferred which was registered and numbered as Title Appeal No. 14/2019. The learned First Appellate Court after Page No.# 11/16

framing the points for determination concurred with the findings of the learned Executing Court and, accordingly, dismissed the appeal and it is under such circumstances that the instant proceedings has been filed.

16. Mr. RK Bhuyan, the learned counsel appearing on behalf of the appellants proposed three questions of law to be substantial questions of law which can be formulated by this Court. The proposed questions of law are as follows:

(i). Whether the decree in respect of the land under possession of occupancy tenant (khatiyan holder) can be executed without making the tenant or his legal heirs as party in the suit?

(ii). Whether the khatiyan issued under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 is determined and /or terminated on the death of Khatiyan holder (tenant)?

(iii). Whether under the Assam (Temporarily Settled Areas) Tenancy Act, 1971, the legal heirs of deceased tenant are entitled to acquire the holding of tenancy by way of inheritance?

17. I have heard the learned counsel appearing on behalf of the parties and have given anxious consideration to the submissions made.

18. Order XXI Rule 97 to 103 of the Code of Civil Procedure were substantially amended by the Code of Civil Procedure (Amendment) Act, 1976. As per the unamended Rule 101, a person who was a bona fide claimant and who satisfied that he was in possession of the suit property on his account or on account of Page No.# 12/16

another other than the judgment-debtor could have been put in possession of the suit property on an application under Rule 100 and 101. Now after the amendment carried out by the Amending Act of 1976, the person who seeks to be restored back in possession has not only to prove that the person was in bona fide possession but also that he has to prove his right, title or interest in respect to the suit property. In other words what was required to be adjudicated in a suit under the unamended Rule 103 is now to be adjudicated in Rule 101 pursuant to the Amending Act of 1976. Similarly the right to file a suit under the unamended Rule 103 has been taken away by amendments made to both Rule 101 and 103 by the Amending Act of 1976 and by necessary implication the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it for which now the orders passed on the application under Rule 98 and 100 are to be treated as decrees. The said amendments brought by the Amending Act of 1976 are therefore with the objective to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.

19. A perusal of the Rule 97 of Order XXI shows that not only a decree-holder or a purchaser but also a third party can complain of resistance and obstruction to the decree for execution and this aspect is clear from the caption "Resistance to delivery of possession to decree-holder or purchaser" as subsumed in Order XXI Rule 97 to 106 and the term "any person" as contained in Rule 97. Further Sub-Rule (2) of Rule 97 makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down. In this regard reference can be made to the judgments rendered by the Supreme Page No.# 13/16

Court in the case of Silverline Forum Pvt. Ltd vs. Rajiv Trust and Another reported in (1998) 3 SCC 723 and Shreenath and Another vs. Rajesh and Others reported in (1998) 4 SCC 543.

20. It is true that the Rule 99 of Order XXI is not available to any person until he is dispossessed of the immovable property by the decree-holder but taking into consideration that Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the Executing Court, it is, therefore, incumbent upon the Executing Court to decide all such legal questions relevant to the adjudication of the application is taken up for consideration. In this regard reference may

be made to the judgment of the Supreme Court rendered in the case of Shamsher Singh & Another vs. Lieutenant Colonel Nahar Singh (Dead) through legal representative & Others reported in (2019) 17 SCC 279 and particularly to paragraph 28 and 29 and the same is quoted hereinbelow :

"28. The use of the words "all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 ..." has to be given meaning and full play. It is also relevant to note that prior to the 1976 Amendment, under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by the 1976 Amendment, Rule 103 has been amended to the following effect :

"103. Orders to be treated as decrees. - Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same Page No.# 14/16

conditions as to an appeal or otherwise as if it were a decree."

"29. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When Respondent 1 filed his application claiming to be put back into possession, it was obliged to establish his right, title or interest in the property without which his application could not have been allowed. The executing court has considered the application of Respondent 1 in right perspective and has clearly held that Respondent 1 failed to prove his title by adverse possession, hence the application deserves to be rejected."

21. In the backdrop of the above, it would be, therefore, seen that the burden upon the appellants were to prove that there was a Khatian in favour of Ketu Bepari and they have claimed their rights through the said Ketu Bepari. The findings of fact arrived at by the learned Trial Court as well the learned First Appellate Court categorically show that the petitioners who are the appellants herein could not show that they had any relation with Late Ketu Bepari or they had acquired any legal rights from Ketu Bepari as per law.

22. This Court further finds it relevant to take note of that the sons of Late Ketu Bepari were also parties in Title Suit No.52/2010 and they never contested the said suit or the counter claim. In the backdrop of the above, when the petitioners, who are the appellants had failed to prove that they had any Page No.# 15/16

relation with Late Ketu Bepari or had derived title from Late Ketu Bepari, let this Court now take up the proposed questions of law as to whether they can be formulated as substantial questions of law.

23. The first question of law which was proposed is as to whether the decree in respect of the land under the possession of the occupancy tenant / Khatian holder can be executed without making the tenant or his legal heirs as a party to the suit? The said question so proposed in the opinion of this Court, cannot be formulated as a substantial question of law, inasmuch as, the petitioners, who are the appellants herein have failed to show that they had any relation with Late Ketu Bepari or any right flowing from Late Ketu Bepari. Apart from that, it is seen that in Title Suit No.52/2010, the sons of Late Ketu Bepari were parties to the suit. Under such circumstances, the first question of law so proposed cannot be formulated as a substantial question of law.

24. The second and the third questions of law so proposed cannot also be formulated as a substantial question of law, in view of the fact that the petitioners, who are the appellants herein failed to prove that they had any semblance of right flowing from Late Ketu Bepari, which is a finding of fact by both the learned Executing Court and the learned First Appellate Court. Furthermore, no perversity was shown in respect to the said findings of facts arrived at concurrently.

25. Considering the above, this Court finds no merit in the instant appeal, for which, the instant appeal stands dismissed.

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26. In the peculiar facts of the case, this Court is not inclined to impose any costs.

JUDGE

Comparing Assistant