Page No.# 1/5 vs On The Death Of Kashem Ali
2025 Latest Caselaw 175 Gua

Gauhati High Court

Page No.# 1/5 vs On The Death Of Kashem Ali on 5 May, 2025

                                                                 Page No.# 1/5

GAHC010101212024




                                                           2025:GAU-AS:5579

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

                        Case No. : I.A.(Civil)/2643/2024

         ABBAS ALI AND ORS.
         S/O LATE HASEN ALI, RESIDENT OF VILLAGE KALAHBHANGA, MOUZA
         DAMKA CHAKABAUSHI, DIST BARPETA, ASSAM 781315

         2: SOHAB ALI
          S/O LATE HASEN ALI
          RESIDENT OF VILLAGE KALAHBHANGA
          MOUZA DAMKA CHAKABAUSHI
          DIST BARPETA
         ASSAM 781315

         3: AYEB ALI
          S/O LATE HASEN ALI
          RESIDENT OF VILLAGE KALAHBHANGA
          MOUZA DAMKA CHAKABAUSHI
          DIST BARPETA
         ASSAM 781315

         4: ON THE DEATH OF HAKIMUDDIN HIS LEGAL HEIRS AND LEGAL
         REPRESENTATIVES NAMELY MUSST. MAYRAM BIBI
         W/O HAKIMUDDIN

          RESIDENT OF VILLAGE KALAHBHANGA
          MOUZA DAMKA CHAKABAUSHI
          DIST BARPETA
          ASSAM 781315

         5: SARPAT ALI
          S/O HAKIMUDDIN

          RESIDENT OF VILLAGE KALAHBHANGA
          MOUZA DAMKA CHAKABAUSHI
          DIST BARPETA
          ASSAM 781315
                                                                      Page No.# 2/5


            6: HAMELA KHATUN
             D/O HAKIMUDDIN

             RESIDENT OF VILLAGE KALAHBHANGA
             MOUZA DAMKA CHAKABAUSHI
             DIST BARPETA
             ASSAM 781315

            7: KAZIMUDDIN
             S/O LATE ATOR ALI

             RESIDENT OF VILLAGE KALAHBHANGA
             MOUZA DAMKA CHAKABAUSHI
             DIST BARPETA
             ASSAM 78131

            VERSUS

            ON THE DEATH OF KASHEM ALI
            HIS LEGAL HEIRS JAHURA KHATUN AND ORS

            2:JAHARUDDIN

             S/O LATE KASHEM ALI
             RESIDENT OF VILLAGE KALAHBHANGA
             MOUZA DAMKA CHAKABAUSHI
             DIST BARPETA
             ASSAM 781315

            3:MOMOTA BEGUM

             D/O LATE KASHEM ALI
             RESIDENT OF VILLAGE KALAHBHANGA
             MOUZA DAMKA CHAKABAUSHI
             DIST BARPETA
             ASSAM 781315

            4:MORGINA BEGUM

             D/O LATE KASHEM ALI
             RESIDENT OF VILLAGE KALAHBHANGA
             MOUZA DAMKA CHAKABAUSHI
             DIST BARPETA
             ASSAM 78131

Advocate for the Petitioner   : MR. K MOHAMMED, MR. A C SARMA,MR G BHARADWAJ,MR
N BRAHMA
                                                                             Page No.# 3/5


Advocate for the Respondent : MR. A K AZAD, MR. S R BARBHUIYA (R1-R9, R11),MR. A K
AZAD (R1-R9, R11),MR M HUSSAIN (R1-R9, R11)




                                 BEFORE
              HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                        ORDER

Date : 05.05.2025

1. Heard learned counsel Mr. G Bharadwaj for the applicant 1) Abbas Ali, 2) Sohab Ali, 3) Ayeb Ali, 4)(i) Musst. Mayram Bibi, 4(ii) Sarpat Ali, 4)(iii) Hamela Khatun and 5) Kazimuddin who have filed this application under Order 1 Rule 10(2) of the C.P.C r/w Section 151 of the C.P.C.

2. Heard learned counsel Mr. M Hussain for the respondent No. 1 to 9 and respondent No. 11.

3. The respondents as plaintiffs filed a suit being Title Suit No. 228 of 2007 in the Court of Munsiff No. 2, Barpeta against the applicant/appellants for declaration of the right, title and interest, cancellation of Sale Deed and partition. The applicant/appellants contested the suit by filing written statement.

4. The learned Trial Court framed 8(eight) issues on the pleadings of the parties. Both parties adduced evidence and exhibited some documents. The learned Trial Court by the judgment dated 23.12.2009 partly decreed the suit of the plaintiff/respondents. The applicant/appellants as well as the respondents being aggrieved by said judgment and decree preferred two separate appeals being Title Appeal No. 11 of 2010 and 13 of 2010 before the Civil Judge, Barpeta. the learned first appellate Court remanded appeal with a direction to :

(a) To implead the plaintiff No. 9 as a defendant;

(b) To frame as issue as to whether the suit is bad for non-joinder of Page No.# 4/5

Atar Ali?

(c) Delete the issue that "whether the plaintiffs are entitled to a drcree for khas possession or not?"

5. The learned Trial Court after remand and after including Kashem Ali as defendant No. 6 in the title suit, passed the impugned judgment and order dated 22.12.2017. On being aggrieved, the applicant/appellant as well as the respondents preferred 2(two) separate appeals registered as T.A No. 6 of 2018 and T.A No. 9 of 2018 before the learned first appellate Court. It is submitted that on erroneous appreciation of law and facts, both the appeals were dismissed. Thereafter, the applicants/the present appellants have preferred this second appeal in this Court.

6. During the pendency of the first appeal, Kashem Ali passed away and the appeal proceeded ex-parte against Kashem Ali. It is submitted that Kashem Ali was also not made a party in the appeal preferred by the respondents. In the second appeal, Kashem Ali is impleaded as respondent No. 10 and steps were taken but notices were not served to Kasem Ali.

7. On the report of the Process Server, the advocate for the applicants learnt that Kashem Ali passed away during the pendency of the appeal which was pending before the learned Civil Judge, Barpeta. The applicants were not informed about the death of the appellant Kashem Ali.

8. It is submitted that Kashem Ali is a necessary party to the suit as well as the appeal. As the appellant Kashem Ali passed away during the pendency of the appeal, hence, the petition for substitution of legal heir of Kashem Ali (respondent No.

10) was not filed as per Order 22 Rule 4 of the C.P.C.

9. The applicants therefore filed this application for impleading the legal heirs of deceased Kashem Ali as they could not file for impleading the legal heirs of the deceased Kashem Ali during the pendency of the first appeal.

10. I have considered the submissions at the bar. I have also heard the Page No.# 5/5

learned counsel for the respondents. I have considered the submissions that Kashem Ali is a necessary party to the suit and the corresponding appeals as he was a necessary party to the suit and the first appeal, his legal heirs are indeed necessary parties in the second appeal.

11. Considering the submissions, the petition under Order 1 Rule 10(2) C.P.C r/w Section 151 of the C.P.C is allowed and the prayer to implead the legal heirs of respondent No. 10 Kashem Ali is hereby allowed. The legal heirs of the respondent No. 10 are 10(i) Johura Khatun, 10(ii) Johor Uddin, 10(iii) Mamata Begom, 10(iv) Marjina Begum being the wife, son and daughters of late Kashem Ali. An amended cause title may be filed in RSA No. 38 of 2003 impleading the legal heirs of Kashem Ali. The appeal has already been admitted in substantial questions of law being framed by this Court by an order dated 14.03.2023.

12. LCRs are received (Office Note dated 24.05.2023).

13. In view of the above observations, this Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant