Page No.# 1/11 GAHC010272792023 2025:GAU-AS:5884 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/6/2024 MD. NUR ISLAM AND 2 ORS. S/O LATE ABDUL SUBAN, VILL.- PALIBARI, MOUZA- GOBHA, P.O. AND P.S.- JAGIROAD, DIST.- MORIGAON, ASSAM, PIN- 782410. 2: MD. SAFIUDDIN ALIAS SAFIQUL ISLAM S/O LATE IMAN ALI VILL.- PALIBARI MOUZA- GOBHA P.O. AND P.S.- JAGIROAD DIST.- MORIGAON ASSAM PIN- 782410. 3: MD. MAINUDDIN AHMED S/O LATE ABDUL JABBAR VILL.- PALIBARI MOUZA- GOBHA P.O. AND P.S.- JAGIROAD DIST.- MORIGAON ASSAM PIN- 782410 VERSUS MD. JAMALUDDIN S/O LATE OMAR ALI, VILL.- NAKHULA GRANT, MOUZA- GOVA, P.O. AND P.S.- JAGIROAD, DIST.- MORIGAON, ASSAM, PIN- 782410. Page No.# 2/11 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the appellant(s) : Mr. B Hussain Advocate for the respondent(s) : Ms. R Choudhury Date of hearing : 09.05.2025 & Judgment JUDGMENT & ORDER (ORAL) Heard Mr. B Hussain, the learned counsel appearing on behalf of the appellants. Ms. R Choudhury, the learned counsel appears on behalf of the newly impleaded respondent. 2. This is an appeal filed under Section 100 of the Code of Civil Procedure 1908, (for short, the Code), challenging the judgment and decree dated 02.09.2023 passed in Title Appeal No.4/2021 by the Court of the learned Civil Judge (Senior Division) Morigaon (hereinafter to be referred to as ‘the learned Appellate Court’) whereby the appeal filed by the appellants were dismissed, thereby confirming the judgment and decree dated 12.01.2021 passed by the Court of the learned Munsiff No.2 Morigaon (hereinafter to be referred to as ‘the learned Trial Court’) in Title Suit No.25/2015. Page No.# 3/11 3. The instant appeal is being taken up at the stage of Order XLI Rule 11 CPC to ascertain as to whether there is any substantial question of law which can be formulated in the instant appeal and thereby to proceed thereafter. 4. For deciding the said aspect, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal. One Md. Jamaluddin, who has been arrayed as a respondent in the instant appeal had filed the suit being Title Suit No. 25/2015 against the Appellants herein, who were the defendants before the Court of the learned Munsiff No.2 at Morigaon. The case of the plaintiff in the said suit is that he was allotted a plot of land ad measuring 4 kathas 13 lechas covered by Dag No. 313 of Paliguri Kissam under Gova Mouza in the district of Morigaon, Assam by the Allotment Letter No. MRS 11/96/98 dated 05.01.2000 and possession was delivered to him for constructing a dwelling house thereon and dwell therein. 5. The land in question, which has been more specifically described in Schedule A to the plaint was a big ditch which the plaintiff filled up. While the plaintiff was constructing his house thereon, he developed cancer, for which, he was under treatment at Dispur Polyclinic and Nursing Home, Guwahati. Taking advantage of his absence, the defendants forcefully occupied the Schedule land, without any authority. The plaintiff had requested the defendants to vacate the suit land, but as the defendants did not vacate, the suit was filed seeking a decree that the plaintiff is the legal allottee of the suit land described in Schedule A and he is entitled to occupy the same; for a decree for recovery of khas possession of the suit land to the plaintiff evicting the defendants Page No.# 4/11 therefrom by dismantling and removing their sheds /construction together with their men and materials therefrom; for permanent injunction etc. 6. The defendants appeared in the said suit and filed their written statement raising various preliminary objections as regards the maintainability of the suit. It was mentioned in paragraph No.13 of the written statement that the defendants were possessing the land by constructing dwelling houses over the land covered by Dag No.313 of Paliguri Kissam in Gova Mouza in the district of Morigaon since 20 years. It was also mentioned by the defendants that prior thereto, the said land was being possessed by one Paresh Biswas, Sri Gopal Rai, Akhbor Ali, Indrajit Das, Hussain Ali along with some other persons and these persons had handed over the possession of their respective shares over the said land to the defendants. On the basis of the pleadings, the learned Trial Court framed as many as seven issues which being relevant are reproduced hereinunder: (i). Whether there is cause of action? (ii). Whether the suit is maintainable in its present form? (iii).Whether the suit land was allotted to the plaintiff and the possession of the same was delivered to the plaintiff vide allotment letter No.MRS11/96/98 dated 05.01.2020, Sl.No.47, book No.261? (iv). Whether the defendants have any right, title, interest and possession over suit land? (v). Whether the plaintiff is entitled to the decree as prayed for? (vi). Whether the plaintiff is entitled to get the relief/reliefs as prayed for? Page No.# 5/11 (vii). To what other relief/reliefs are the parties entitled to? 7. On behalf of the plaintiff, 5(five) witnesses were examined and on behalf of the defendants also 5(five) witnesses were examined. The plaintiff exhibited various documents including the Allotment Letter dated 05.01.2020; the revenue paying receipts. The defendants also exhibited various documents which were unregistered sale deed and certificates from the Gaonburah. 8. It is very pertinent at this stage to take note of from the records of Title Suit No.25/2015 that on 25.02.2020 after the evidence of both the parties being over, the case was fixed on 25.03.2020 for arguments. On 19.12.2020, the arguments were completed and the suit was fixed on 02.01.2021 for judgment. The above aspect is very relevant taking into account that the plaintiff expired on 03.01.2021 and the judgment was pronounced by the learned Trial Court on 12.01.2021 thereby decreeing the suit in favour of the plaintiff whereby the relief sought for in the plaint were granted. 9. Being aggrieved, the defendants preferred an appeal before the Court of the learned Civil Judge (Senior Division) Morigaon being Title Appeal No.4/2021. The appeal was filed against the dead plaintiff. This Court had also taken note of the LCR which had been called for the records of the learned Trial Court as well as the learned First Appellate Court. 10. Upon the filing of the said appeal being Title Appeal No.4/2021 vide an Page No.# 6/11 order dated 10.03.2021, the said appeal was admitted. The record further reveals that on 23.09.2021, one of the legal representatives of the plaintiff Md. Safiqul Islam filed an application on 23.09.2021 stating inter alia that the plaintiff had expired, leaving behind the five legal representatives, whose names were also provided in the said petition. 11. Subsequent thereto, vide another petition on 04.12.2021, an Advocate by the name of Mr. N.K. Borah informed the learned First Appellate Court that on 03.01.2021, the plaintiff expired. On 13.12.2022 the learned First Appellate Court fixed 19.01.2022 for steps upon the respondents. It is further seen from the records that without formally substituting the plaintiff, who expired even prior to the filing of the appeal, the learned First Appellate Court proceeded with the said appeal by hearing the appellants as well as the legal representatives of the plaintiff. The record further reveals that by the judgment and decree dated 02.09.2023, the appeal was dismissed, thereby affirming the judgment and decree dated 12.01.2021 passed by the learned Trial Court in Title Suit No.25/2015. It is under such circumstances, the present appeal has been filed. 12. This Court further finds it very pertinent to take note of that even after knowing fully well that the plaintiff had expired than also the present appeal was filed against the original plaintiff. On this ground alone, the present Appeal is not maintainable. Be that as it may, the record reveals that again the legal representatives of the original plaintiff filed an interlocutory application being IA(C)No.3721/2024 and this Court vide an order dated 19.03.2025 again impleaded the legal representatives of the plaintiff as respondents to the instant Page No.# 7/11 appeal. 13. In the background of the above, let this Court consider as to whether the substantial questions of law so proposed can at all be formulated as substantial questions of law involved in the instant appeal. 14. Mr. B Hussain, the learned counsel appearing on behalf of the appellants had proposed the following four questions of law to be substantial questions of law and for the sake of convenience the same are reproduced hereinunder: (i). Whether the impugned judgment and decree passed by the learned Courts below in decreeing the suit instituted by the Respondent/Plaintiff for declaration of allotment right and for recovery of khas possession without prior possession of suit land described in Schedule-A deciding Issue No.1, 2, 3 vide Exhibit-1 allotment letter dated 05.01.2020 showing cause of action 31-12-2013 ignoring the nature of plaintiff's suit and his right over the Govt. land are sustainable in law? (ii). Whether the impugned judgment and decree passed by the learned Courts below decreeing the suit on the basis of right of plaintiff over allotment of Govt. land vide Exhibit-1 allotment letter dated 05.01.2020 without finding right, title of the plaintiff over the Govt. land and making party of the Govt. of Assam of the suit is not barred by law under Section 154 of Assam Land and Revenue Regulation, 1886 and is sustainable in law? (iii). Whether the impugned judgment and decree dated 12.01.2021 passed by the learned Courts below in favour of dead plaintiff who died on Page No.# 8/11 03.01.2021 without LRS not brought on record over the Govt. land where no right accrued to the plaintiff vide Exhibit-1 which are perverse and the judgment and decree in favour of dead plaintiff is nullity and sustainable in law? (iv). Whether the suit filed by the plaintiff/respondent is maintainable in law and not barred by limitation under Article 58 of the Limitation Act as per evidence of plaintiff witness, P.W.3? 15. The first question of law so proposed pertains to as to whether the impugned judgment and decree passed by the learned Courts below was sustainable for declaration of the allotment right and for recovery of khas possession without prior possession of the suit land described in Schedule-A on the basis of the Exhibit-1, Allotment Letter dated 05.01.2020 was sustainable in law. 16. It is seen that both the learned Courts below have concurrently come to a finding that the plaintiff was in possession of the suit land till he was dispossessed by the defendant. 17. This Court further finds it relevant upon a perusal of Exhibit-1 as well as the evidences of PW-4 and PW-5 which both the Courts below have duly considered that the land was allotted to the plaintiff by the Deputy Commissioner which was duly proved. Page No.# 9/11 18. Considering the above, it is the opinion of this Court that both the Courts below were justified in decreeing the suit that the plaintiff is the legal allotee of the suit land as described in Schedule-A to the plaint as well as for recovery of khas possession of the suit land by evicting the principal defendants etc. Accordingly, the first question of law so proposed cannot be formulated as a substantial question of law sans any perversity shown to the finding of facts arrived at concurrently by both the Courts below. 19. The second question so proposed pertains to as to whether the learned Court was justified in decreeing the suit when it was barred under Section 154 of the Assam Land and Revenue Regulation 1886. 20. This Court has duly perused the written statement filed by the appellants and further the issues framed and the discussions so made by both the Courts below. Nowhere such a plea had been taken in the suit by the appellants and, as such, the same in the opinion of this Court cannot be a substantial question of law which can be formulated. 21. The third question of law so proposed is as to whether the judgment and decree dated 12.01.2021 passed by the learned Trial Court in favour of the dead plaintiff, who died on 03.01.2021 without the LRs not being brought on record over the government land was perverse and the judgment and decree was passed in favour of a dead plaintiff is a nullity. Page No.# 10/11 22. It surprises this Court as to how the said question of law at all can be a substantial question of law which can be formulated, more so, when the appellants have been consistently filing the First Appeal as well as the present Second Appeal against the dead plaintiff. Be that as it may, as had been already observed in the previous segments of the instant judgment, the suit was heard on 19.12.2020, and the Court fixed the case for judgment on 02.01.2021 and thereupon the judgment and decree was passed on 12.01.2021. It is relevant at this stage to take note of Order XXII Rule 6 of the Code, which would show that the question of the suit having been abated does not arise, and as such, the question of law so proposed cannot also be said to be a substantial question of law which can be formulated. 23. The fourth question of law which has been proposed is as to whether the suit of the plaintiff was maintainable in law and not barred by limitation under Article 58 of the Limitation Act, 1963 as per evidence of the plaintiff, witness number No.3. 24. This Court has duly perused the plaint and the relief sought for. From the plaint, it is seen that the plaintiff had sought for a declaration that he was a legal allotee and along with it sought for recovery of khas possession over the suit land. 25. It is a settled principle of law that in a suit for declaration along with recovery of possession, the limitation in respect to the relief for recovery of possessions shall be taken into account for the purpose of limitation. In the instant case, there is no material on record to show as to when the defendant Page No.# 11/11 had dispossessed the plaintiff, except merely stating that they have been in possession of the suit land since 20 years. 26. Taking into account that the plaintiff has a right over the suit land being a legal allotee, it is the defendants who have to prove that the possession was adverse and having failed to prove that, the question of law so proposed cannot be formulated as a substantial question of law involved in the instant appeal. 27. Considering the above, as this Court does not find that any substantial question of law which can be formulated in the instant appeal, the instant appeal cannot be proceeded further, for which, the appeal stands dismissed. 28. The records so called for be returned back. JUDGE Comparing Assistant