Page No.# 1/ vs Pinjira Begum And 15 Ors
2025 Latest Caselaw 4390 Gua

Gauhati High Court

Page No.# 1/ vs Pinjira Begum And 15 Ors on 24 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/11

GAHC010127622019




                                                              2025:GAU-AS:3302

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

                        Case No. : CRP(IO)/188/2019

         PURNA KANTA HAZARIKA
         S/O- LT KESHRAM HAZARIKA, R/O- VILL- FULBARI, WARD NO-8, P.O./P.S.
         MORIGAON, DIST- MORIGAON, ASSAM, PIN- 782105



         VERSUS

         PINJIRA BEGUM AND 15 ORS.
         D/O- LT AMINAT ALI, W/O- LT WAHID ALI, R/O- VILL- FULBARI,, WARD NO
         8, P.O./P.S. MORIGAON, DIST- MORIGAON (ASSAM), PIN- 782105

         2:MD. NAJIMUDDIN @ NAJIMUTDDIN ALI @ BABULI
          S/O- LT AMINAT ALI
          R/O- VILL- FULBARI

          WARD NO 8
          P.O./P.S. MORIGAON
          DIST- MORIGAON (ASSAM)
          PIN- 782105

         3:MD. ENTAZ ALI
          R/O- VILL- FULBARI

          WARD NO 8
          P.O./P.S. MORIGAON
          DIST- MORIGAON (ASSAM)
          PIN- 782105

         4:ON THE DEATH OF NAUSAT ALI@MOINA@HASMAT ALI
          HIS LEGAL HEIRS
          S/O- LT AMINAT ALI

         4.1:MD. EAUDDIN
                                         Page No.# 2/11

S/O- NAUSAT ALI @ MOINA @ HASMAT ALI
R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

4.2:MD. DILDAR HUSSAIN
 S/O- NAUSAT ALI @ MOINA @ HASMAT ALI
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

5:ON THE DEATH OF ARSAT ALI
 HIS LEGAL HEIRS
 S/O- LT AMIRAT ALI

5.1:MD. ANISAT ALI
 S/O- LT ARSAD ALI
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

5.2:MD. MUBARRAK ALI
 S/O- LT ARSAD ALI
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6:ON THE DEATH OF ROUSAD ALI @ LEBERA
 HIS LEGAL HEIRS
 S/O- LT AMIRAT ALI

6.1:MD. IDAR ALI
 S/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
                               Page No.# 3/11

P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6.2:MD. NODAR ALI
 S/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6.3:MD. SAMIR ALI
 S/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6.4:MD. BABLU ALI
 S/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6.5:MUSTT MOINA BEGUM
 D/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

6.6:MUSSTT RUNA BEGUM
 D/O- LT ROUSED ALI@ LEBERA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105
                                      Page No.# 4/11


7:ON THE DEATH OF AIFAT ALI
 HIS LEGAL HEIRS
 MORIGAON

7.1:MD. SALAM ALI
 S/O- LT AIFAT ALI
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

8:ON THE DEATH OF INTAZ ALI
 HIS LEGAL HEIRS
 S/O- LT AMIRAT ALI

8.1:MUSSTT. SARNAI BEGUM
W/O- LT INTAZ ALI
 R/O- VILL- MORIMUSHALMAN GAON

WARD NO 7
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

9:ON THE DEATH OF SEMIJA KHATUN
 HER LEGAL HEIRS
 D/O- LT AMIRAT ALI

9.1:MD. SAJID ALI
 S/O- LT SAMIJA KHATUN
 R/O- VILL- SALSALI (PURANI GUDAM)

P.O. SALSALI
P.S. SAMUGURI
DIST- NAGAON(ASSAM)
PIN-

9.2:MD. WASIF ALI
 S/O- LT SAMIJA KHATUN
 R/O- VILL- SALSALI (PURANI GUDAM)

P.O. SALSALI
P.S. SAMUGURI
DIST- NAGAON(ASSAM)
PIN-
                                      Page No.# 5/11


9.3:MD. AHIA KHAN
 S/O- LT SAMIJA KHATUN
 R/O- VILL- SALSALI (PURANI GUDAM)

P.O. SALSALI
P.S. SAMUGURI
DIST- NAGAON(ASSAM)
PIN-

10:JIBAN SAIKIA
 S/O- LAKHI SAIKIA
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

11:NOMIBALA SAIKIA
 D/O- LT HAREN
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

12:URMILA DEVI KAKOTI
 D/O- LT BIPUL KAKOTI
 R/O- VILL- FULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

13:GIRIBALA HAZARIKA
W/O- LT LILADHAR HAZARIKA
 R/O- VILL- PHULBARI

WARD NO 8
P.O./P.S. MORIGAON
DIST- MORIGAON (ASSAM)
PIN- 782105

14:BINANATH HAZARIKA
 S/O- KANPAI HAZARIKA
                                                                 Page No.# 6/11

             R/O- VILL- PHULBARI

             WARD NO 8
             P.O./P.S. MORIGAON
             DIST- MORIGAON (ASSAM)
             PIN- 782105

            15:DIMBESHWAR HAZARIKA
             S/O- KANPAI HAZARIKA
             R/O- VILL- PHULBARI

             WARD NO 8
             P.O./P.S. MORIGAON
             DIST- MORIGAON (ASSAM)
             PIN- 782105

            16:KATIA SAIKIA
             S/O- HANUAH SAIKIA
             R/O- VILL- PHULBARI

             WARD NO 8
             P.O./P.S. MORIGAON
             DIST- MORIGAON (ASSAM)
             PIN- 78210


For the Petitioner(s       : Mr. A.K. Purkayastha, Advocate
                           Mr. S. Sharma, Advocate
For the Respondent(s)      : None appears


Date of Hearing                          : 24.03.2025
Date of Judgment                         : 24.03.2025

                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. A.K. Purkayastha, the learned counsel appearing on behalf of the petitioner.

Page No.# 7/11

2. The supervisory jurisdiction of this Court has been invoked by challenging an order dated 11.04.2019 passed by the learned Court of the Civil Judge, Morigaon (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 28/2016 wherein the application filed under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, "the Code") for the purpose of appointing a Commissioner to measure the land of the counter-claimant which is more particularly described in Schedule 'C' to the counter-claim from which the counter-claimant was dispossessed was rejected.

3. It is seen from the materials on record that the petitioner as the counter-claimant filed a petition No. 989 dated 12.09.2018 under Order XXVI Rule 9 of the Code before the learned Trial Court for issuance of a commission for measurement of the suit land and to ascertain the dispossession of the suit land of the counter-claimant by the defendant in the said suit and by the other defendants. The application was filed at the time when the suit was fixed for evidence of the defendant witnesses. When the said application was taken up on 19.11.2018, the learned Trial Court observed that as the evidence of the defendant/counter-claimant is yet to be completed, it would not be safe to decide at that stage whether appointment of Amin Commissioner to measure and ascertain the alleged dispossession is necessary or not. It was categorically observed in the order dated Page No.# 8/11

19.11.2018 that the learned Trial Court therefore would keep the issue pertaining to appointment of an Amin Commissioner open to be decided at an appropriate stage.

4. The record further reveals that upon the evidence being complete and the arguments were heard and the suit was at the stage of judgment, the petitioner herein who was the counter-claimant filed another petition being petition No. 420 thereby drawing the attention of the learned Trial Court that the issue pertaining to appointment of an Amin Commissioner i.e. the petition No. 989 dated 12.09.2018 is yet to be decided and therefore requested the learned Trial Court to decide the said aspect first before delivering any judgment. It is also very pertinent to take note of that on 11.04.2019, the learned Trial Court not only rejected the application under Order XXVI Rule 9 of the Code i.e. the petition No. 989 dated 12.09.2018 but also framed additional issues on the counter-claim. Issue No. 3 which was framed as an additional issue on the counter-claim on 11.04.2019 reads as under:

"3. Whether the defendant/the counter-claimants have right, title and interest over the Schedule 'A' land and whether they are entitled to recover khas possession of the Schedule 'C' land as described in the counter-claim?"

5. Mr. A.K. Purkayastha, the learned counsel appearing on behalf of the petitioner submitted that a perusal of the impugned order dated Page No.# 9/11

11.04.2019 would show that the learned Trial Court did not give any reasons as to why the appointment of an Amin Commissioner was not required except stating that the prayer for local investigation cannot be entrusted to the Commissioner to gather evidence for warranting survey of the factum of the defendant No. 1's alleged dispossession as prayed for. The learned counsel appearing on behalf of the petitioner drawing the attention to the additional Issue No. 3 submitted that how the learned Trial Court would decide the Issue No. 3 which is as regards recovery of possession of the Schedule 'C' land without there being a report of an Amin Commissioner?

6. This Court having taken note of the orders dated 19.11.2018 as well as 11.04.2019, including the framing of additional issues on the counter-claim and more particularly, the Issue No. 3 and the fact that there is a dispute, as to whether, the petitioner herein who is the counter-claimant has been at all dispossessed from the Schedule 'C' land described in the plaint is of the opinion that the learned Trial Court ought to have allowed the said application seeking appointment of an Amin Commissioner.

7. Accordingly, this Court interferes with the order dated 11.04.2019 only to the extent whereby the petition No. 989 dated 12.09.2018 was rejected.

Page No.# 10/11

8. This Court further allows the petition number 989 dated 12.09.2018 and further directs the learned Trial Court to appoint an Amin Commissioner to submit a report. It is further observed that upon the report being submitted, the learned Trial Court shall proceed with the adjudication of the said suit in accordance with law.

9. This Court duly takes note of that vide the order dated 17.06.2019, a direction was issued that the learned Trial Court may hear the arguments in Title Suit No. 28 /2016 but shall not deliver the judgment. This interim order has been continuing since then. Considering the above, the petitioner herein who is the counter- claimant is directed to appear before the learned Trial Court i.e. the learned Court of the Civil Judge, Morigaon on 23.04.2025 and produce a certified copy of the instant judgment. On the basis of the said, the learned Trial Court shall pass an order giving effect to the judgment passed today by this Court, thereby allowing the petition No. 989 dated 12.09.2018 and seek a report by appointing an Amin Commissioner.

10. As the other respondents are not represented before this Court, the learned Trial Court shall also issue notice on the same date for the appearance of the plaintiff as well as the other parties to the suit, so that the suit can be brought to the logical conclusion.

Page No.# 11/11

11. With the above observations and directions, the instant petition stands disposed of. No costs.

JUDGE

Comparing Assistant