Page No.# 1/15 GAHC010282542019 2026:GAU-AS:10291 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/267/2019 ON THE DEATH OF FEDDUS ALI, HIS LEGAL HEIRS NAMELY- 1.1: AYSA KHATUN W/O LATE FERDDUS ALI @ FEDDUS ALI R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.2: AKHER ALI S/O LATE FEDDUS ALI R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.3: ATOWAR RAHMAN S/O LATE FEDDUS ALI R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.4: AFTAR ALI S/O LATE FEDDUS ALI R/O- VILL.- BAGURIGURI PATHAR Page No.# 2/15 MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.5: ANOWAR HUSSAIN S/O LATE FEDDUS ALI R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.6: FIROZA KHATUN D/O LATE FEDDUS ALI W/O A. GAFOR R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.7: AFRUZA KHATUN D/O LATE FEDDUS ALI W/O ABIRUDDIN MANDAL R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM. 1.8: SABIRON NESSA D/O LATE FEDDUS ALI W/O MAHAMMAD ALI R/O- VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHUG DIST.- BARPETA ASSAM VERSUS ABUL KASEM AND 13 ORS. S/O- LATE FAKIR MAHMUD Page No.# 3/15 2:BAHARUL ISLAM S/O- LATE FAKIR MAHMUD 3:JAMAL UDDIN S/O- LATE A KADDUS 4:MAHABUR ALI S/O- LATE A KADDUS 5:ABBASH ALI S/O- LATE A KADDUS 6:MOHAR ALI S/O- LATE SHER MAHMUD 7:AFSAR ALI S/O- LATE SHER MAHMUD 8:ANSER ALI S/O- LATE SHER MAHMUD 9:AMZAD ALI S/O- LATE SHER MAHMUD 10:STRUCK OFF. VIDE HON'BLE COURT'S ORDER DTD. 8/8/2022 PASSED IN RSA NO.267/2019. 11:LEGAL HEIRS OF SHAJAMAL MONDOL MUNNAF ALI S/O- LATE SHAJAMAL MONDOL 12:SAIFUL ISLAM MONDOL S/O- LATE SHAJAMAL MONDOL 13:RASHIDUL MONDOL S/O- LATE SHAJAMAL MONDOL ALL ARE RESIDENTS OF VILL.- BAGURIGURI PATHAR MOUZA- KHARIZA BIJNI P.S. SORBHONG DIST.- BARPETA ASSAM. 14:STRUCK OFF. VIDE HON'BLE COURT'S ORDER DTD. 8/8/2022 PASSED IN RSA NO.267/2019 Advocate for the Petitioner : MR. J AHMED, MRS R BEGUM,MS A HUSSAIN Page No.# 4/15 Advocate for the Respondent : MR B DEORI, MR. A C SARMA,MR G BHARADWAJ,MR. B HUSSAIN BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 27.07.2026. Heard Mr. J. Ahmed, learned counsel for the appellants and Mr. A.C. Sharma, learned Sr. Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the respondent. 2. This second appeal, under Section 100 of the CPC, is directed against the order dated 24.09.2019, passed in Title Appeal No. 66/2017 and also the order dated 24.09.2019, passed in Misc(J) Case No. 115/2013 filed against the judgment and decree dated 30.06.2017, passed in Title Suit No. 58/2013 by the learned Munsiff No.2 Barpeta. 3. It is to be noted here that vide impugned order dated 24.09.2019, passed in Misc(J) Case No. 115/2013, the learned First Appellate Court had rejected the petition under Section 5 of the Limitation Act for condonation of delay and consequently, dismissed the Title Appeal No. 66/2017, and consequently, affirmed the judgment and decree dated 30.06.2017, passed in Title Suit No. 58/2013 by the learned Munsiff No.2 Barpeta. 4. For the sake of convenience and to avoid confusion, the parties will be referred to as per their original status in the title suit, before the learned Trial Court. The Background Facts:- 5. The background facts, leading to filing of the present appeal, are briefly stated as under:- Page No.# 5/15 The case of the plaintiff is that a plot of land measuring 9 B 4K 11L of land (4B 4K 11L covered by Dag No 340/PP No 129 and 4 B 4k 10L covered by Dag No 339/ PP No 173) in village Bagariguri Pathar Mouza Khanza Bijni, District Barpeta is the Schedule A land of the plaint. The 4 B 4 K 11 L of land in Dag No 340 is the Schedule B land of the plaint and the 4B 4K the Schedule C land of the plaint. The original pattadar of the Schedule A land sold the Schedule A land to the plaintiff by executing a Regd. Sale Deed No 1011/65. But, the name of the plaintiff was cancelled without any specific order. The plaintiff gave Adhi of his land to Abdul Kashem, Abdul Kuddus, Baharul Islam, Shajamal Mondol. After the death of Shajamal Mondol, his legal heirs, the defendant No(s) 10, 11 and 12 have been possessing the Schedule C land as adhiar. Similarly, Abdul Kuddus, Abdul Kashem, Sher Mahmud and Baharul Islam have been possessing the Schedule B land, but later on, the defendants refused to give adhiar and when the plaintiff requested them to vacate the lands, the defendants claimed that they purchased those lands from the original pattadar. Thereafter, on 15-01-13, the plaintiff came to know that the defendants have illegally mutated their names over the Schedule B and C land. The plaintiff neither sold or transferred his lands to anybody and hence the defendants do not have right, title and interest over the suit land. Then the plaintiff has filed a title suit, being T.S. No.58/2013, against the respondents/defendants in the Court of Munsif No. 2. Barpeta, praying for right, title and interest and khas possession of the plaintiff over the suit land, cancellation of various mutation orders illegally conferring mutation to the defendants, permanent injunction, Page No.# 6/15 etc. The defendants appeared and filed written statement (WS). In their WS, the defendants claimed that the father of the plaintiff gifted the Schedule A land in favour of his sons: Khoka Mondol and Iddrish Ali in the year 1967 and mutated their names on 21-12-67. But the plaintiff has not questioned the said mutation and hence the suit is barred by limitation. Also the defendants have claimed that the suit is not maintainable as the same is barred under the Assam Temporary Settled Areas Tenancy Act. The defendants have claimed that the father of the plaintiff purchased the Schedule A land in the name of his son, Feddus Ali who was a minor back then. Later on, Dhan Mamud gifted the Schedule A land as per Islamic Law in favour of his sons Khoka Mandal and Iddrish Ali and put them in possession. Thereafter, the names of Idrish Ali and Khoka Mandal were mutated as per the order of SDC on 21-12-67. Khoka Mandal sold 2B 10L out of Schedule A land to the father of the defendant Nos 3, 4, 5 and Sher Mamud, the father of the defendant Nos 6,7,8,9 and the defendant Nos. 1 and 2 by executing Regd Sale Deed No 692/79. Khoka Mandal again sold 2B 2K 1L out of Schedule À land in favour of the sons of late Fakir Mamud by executing Regd Sale Deed No 163/90. Iddrish Ali gifted 2B out of his share in Schedule A land in favour of Bagariguri Dar Ul Ulum by executing Regd Deed No 576/81. Iddnsh Ali also sold 4K 10L to Shah Jamal by executing Regd. Sale Deed No 1292/90 and 2B to defendant No 2 by executing Regd. Sale Deed No 1778/96. Hence by virtue of being lawful owners over the suit land, the defendants have prayed for dismissal of the suit. On the basis of the pleadings, the following issues were framed by the Court:- Page No.# 7/15 (a) Whether there is cause of action for the suit? (b) Whether the suit is barred by limitation? (c) Whether the plaintiff has right, title and interest over the suit land? (d) Whether the plaintiff is entitled for the reliefs claimed? (e) To what other relief/reliefs the plaintiff is entitled to? The plaintiff then examined one Feddus Ali as PW-1, Kashem Ali as PW-2, Gafur Ali as PW-3,-Ayesha Khatun as PW-4. The defendants on the other examined Baharul Islam as DW-1, Khoka Mandal as DW-2 and Kandu Sheikh as DW-3. Thereafter, hearing the arguments of both sides and has perused the record the learned Trial Court had decided Issue No.(a) in affirmative. Issue No.(b) is in affirmative by holding that the suit is barred by limitation. Issue No (c), in affirmative by holding that the plaintiff has no right, title and interest over the suit land. And in view of the findings in Issues No (b) and (c), the learned Trial Court had decided Issues No (d) and (e) against the plaintiff. And thereafter, vide judgment and decree, dated 30.06.2017, the learned Trial Court had dismissed the suit. Then being aggrieved, by the judgment and decree, dated 30.06.2017, passed by the learned Trial Court, the plaintiff had preferred an appeal before the learned First Appellate Court, being Title Appeal No. 66/2017, and as there was delay of 180 days in preferring the same, the plaintiff had also filed one application for condonation of delay being Misc(J) Case No. 115/2013. But, vide order dated 24.09.2019, passed in Misc(J) Case No. 115/2013, the learned First Appellate Court had rejected the petition Page No.# 8/15 for condonation of delay as the grounds set forth in the petition for delay was not substantiated on the face of the Medical Certificate and accordingly, rejected the petition. And since the petition for delay condonation is rejected, the learned First Appellate Court had dismissed the Title Appeal No. 66/2017 vide another order dated 24.09.2019. Threby the judgment and decree, dated 30.06.2017, passed in Title Suit No. 58/2013, by the learned Trial Court stands affirmed. 6. Being aggrieved the plaintiff has preferred the present appeal and the same was admitted vide order dated 08.08.2022on following substantial question of law:- (a) Whether the Court below was justified in dismissing the suit of the plaintiff on the basis that the plaintiff's right over the suit land stood extinguished and time barred without there being any materials on record to show that the defendants claimed adverse possession against the plaintiff? (b) Whether the right, title and interest of the plaintiff in the instant case can stand extinguished for not challenging the registered deed No.576 executed in the year 1981 and allowing the defendants to remain in possession of the suit land? (c) Whether the judgment and decree passed by the trial court suffers from perversity? Submissions of learned counsel for the appellant:- 7. Mr. Ahmed, learned counsel for the appellant, has submitted that the learned Trial Court had erroneously decided Issue Nos. (b) and (c) and that the suit was not barred by limitation and the plaintiffs have right, title and interest over the suit land. He also submitted that the predecessor of the present plaintiffs had purchased the suit land from original pattadar vide Exhibit-1, Sale Deed No. 1011 Page No.# 9/15 dated 02.08.1965, and the said original pattadar had never sold any land to the defendants and that the defendants are strangers. Though, the defendants have claim their title on the basis of an oral gift and mutation of their names in the revenue record, yet, mutation of name in the revenue record confers no title upon the defendants, who are strangers and the learned Trial Court had erroneously decreed the suit and the same suffers from perversity and the substantial question of law No.(c) flows out of the impugned judgment and decree. He also submits that Khalil was not the owner of the suit property and he cannot donate the suit land and that the learned Trial Court had decided the issue Nos. (b) and (c) erroneously and accordingly the other substantial question of law are also flows out of the impugned judgment and decree and therefore he has contended to allow this appeal. 7.1. In support of his submission, Mr.Ahmed has referred following decisions:- (i) Binod Pathak & ors vs. Shankar Choudhary & Ors. Civil Appeal No. 7706 OF 2025 (Arising out of Special Leave Petition (C) No. 1536 of 2015) (ii) Shivshankara & Anr. Vs. H.P. Vedavyasa Char, reported in (2023) 13 SCC 1, (iii) Legal Heirs of Abdul Hamid & Ors vs. Ram Nagina Gupta & Anr reported in 2025 (4) GLT 255. Submission of learned counsel for the respondent:- 8. Per contra, Mr. A.C. Sharma has raised following points for consideration of this Court:- (a) That neither the signature of the plaintiff nor the thumb impression can be seen in the Exhibit - 1 (Sale Deed No. 1011 dated 02-08-1965) exhibited by the plaintiff. Page No.# 10/15 (b) That the plaintiff was a minor at the time of purchase of the Sale Deed which could be established from the affidavit annexed to the plaint wherein the age of the plaintiff is mentioned as 60 years at the date of presentation of the plaint (12-03-2013) and the plaintiff would be 11 years at the time of purchasing of the suit property Exhibit -1 (Sale Deed No. 1011 dated 02-08-1965). As such the appellant was a minor at the time of filling of the suit. Defendants/respondents had stated in their written statements that the plaintiff was a minor at the time of alleged sale deed. (Section 58 of the Indian Evidence Act, 1872). (c) That the defendant No.10 died prior to filling of the suit, as such, the suit itself is a nullity. All reliefs so claimed by the plaintiff are jointly and severally and based on a common relief and cause of action. (d) That although the plaintiff challenged the mutation order dated 21-12-1967 in the name of his two brothers namely Khoka Mandal and Iddrish Ali. However, the plaintiff did not make them a party to the suit. (Para - 3 of the written statement). As such, the suit is bad for non-joinder of necessary parties. (e) Suit is barred by limitation. (Para 2 of the written statement). Moreover, the plaintiff did not pray for cancellation of the various deeds of the defendants inspite of it being clearly mentioned in the written statement. Article 27 of the Limitation Act, 1963 will also be applicable in the instant case as the plaintiff failed to seek remedy within the statutory time. (f) That under the Mohammedan Law, an oral gift is permissible and requires no registration. Section 129 of the Transfer of Property Act, 1882. Page No.# 11/15 (g) That the appellants did not raise any substantial question of law on the findings of the learned appellate Court and therefore is not aggrieved by the decision of the appellate Court. (h) Section 115 of the Indian Evidence Act, 1872 Estoppel by Conduct. By Deed No. 576/1981 Idris donated land in favour of Durul Ullema Madrassa (Exhibit - C) (proforma-defendant No.1) in which the plaintiff was one of the witnesses. (i) The respondents had purchased the land and are in possession of the purchased land, as such, the defendants are bona-fide purchasers for value without notice and are protected under Section 19(b) of the Specific Relief Act, 1963 and their rights over the land cannot be extinguished. 8.1. In support of his submission, Mr. Sharma has referred following decisions:- (i) Hemalatha (D) by LRs. vs. Tukaram (D) by LRs. and Others, reported in 2026 SCC OnLine SC 106; (ii) Chairman, State Bank of India and Another vs. M.J. James, (2022) 2 Supreme Court Cases 301; (iii) Smt. Uma Devi and Ors. vs. Sri. Anand Kumar and ors. Civil Appeal No. of 2025 (Special Leave Petition (Civil) No 2137 OF 2025) (iv) Md. Noorul Hoda vs. Bibi Raifunnisa and Others, reported in (1996) 7 Supreme Court Cases 767; (v) Ashok Transport Agency vs. Awadhesh Kumar and Another, reported in (1998) 5 Supreme Court Cases 567; (vi) Kiran Singh and others Vs. Chaman Paswan and others. Reported in AIR 1954 SUPREME COURT 340; (vii) Habibur Rahman & Anr. vs. Legal Heirs of Kabal Page No.# 12/15 Lia Bibi & Ors. reported in 2016 (3) GLT 127; (viii) Laxminarayan & Two Others vs. Jankibai & 15 Others, of Madhya Pradesh, High Court at Indore, Civil Revision No. 591 of 2023, 8.2. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order dated 24.09.2019, passed in Title Appeal No. 66/2017 and also the order dated 24.09.2019, passed in Misc (J) Case No. 115/2013 and also gone through the judgment and decree, dated 30.06.2017, passed in Title Suit No. 58/2013 by the learned Trial Court. 8.3. It appears that Mr. Sharma, learned counsel for the respondent, in point No. 3 of the synopsis of the arguments has pointed out that the defendant No. 10 died prior to the filing of the suit and as such, the suit itself is a nullity and all reliefs so claimed by the plaintiff jointly and severally and based on a common relief and cause of action are nullity. 8.4. It is not in dispute that the defendant No. 10 died prior to filing of the suit. Mr. Ahmed, learned counsel for the appellants, submits that the plaintiffs have filed an application before the learned Trial Court. But, the same was not disposed of by the learned Trial Court and without any order being passed in respect of defendant No. 10, who suffered demise, the learned Trial Court had passed the judgment and decree and the same also eschewed consideration of the learned First Appellate Court and as such, the decree so passed against a dead person is a nullity. 9. In order to appreciate the submissions of learned counsel for both the parties, this Court has gone through the record of the learned Trial Court, and this Court finds sufficient force in the submission of Mr. Ahmed, learned counsel for the appellants. Page No.# 13/15 10. It appears that on 12.02.2014, the plaintiffs have filed an application No. 380/2014, under Order 22 Rule 2 of the CPC, read with Section 151 of the same, for impleadment of legal heirs of the defendant No. 10, namely Ajirom Nessa, wife of the defendant No. 10, as defendant No. 10A and Amin Ahmed, minor son of the defendant No. 10, represented by his mother, as defendant No. 10B. And the said petition finds reflection in the order of the learned trial court, dated 12.02.2014, which is read as follows:- O R D E R 12.02.2014:- Advocate for the both parties are present. Issue fresh summons to the defendant No. 10. The plaintiff shall take steps. Fixing on 07.03.2014 for S.R. & N/O. Later, Advocate for the plaintiff has filed petition No. 380/2014 stating that legal heirs of 10(a) and 10(b). Date as before.” 11. But, having gone through the record of the learned Trial Court, this Court finds that the said petition No. 380/2014, remained unattended and without the same being disposed of, the learned Trial Court proceeded against the dead person being the defendant No. 10 and passed the impugned judgment and decree. 12. The law regarding the fate of an order or decree passed against a dead person is well settled in a catena of decisions of Hon’ble Supreme Court. It has consistently been held that a decree against a dead person is a nullity. Reference in this context can be made in the case of Gurnam Singh (D) Thr. LRs & Ors. Vs. Gurbachan Kaur (D) by LRs & Others, reported in (2017) 13 Page No.# 14/15 SCC 414, wherein Hon’ble Supreme Court has held that a decree or judgment passed for or against a deceased person without bringing their legal representatives on record within the prescribed time, leading to abatement under Order XXII Rules 3 & 4 of the CPC, is a legal nullity (void ab initio). Once a party dies and no substitution occurs, the court loses jurisdiction to proceed. The proceedings abate and any decree rendered thereafter lacks legal validity and such a decree cannot be enforced and its invalidity can be challenged at any stage including in execution proceedings. 12.1. Reference in this context can also be made to the case of Kiran Singh vs. Chaman Paswan, reported in AIR 1954 SC 340, wherein it is held that the courts lack jurisdiction over a non-existent party (dead person) and the decrees without jurisdiction being nullities. 13. In view of above, this Court is of the view that the substantial question of law No. (iii) flows out of the impugned judgment and decree so passed by the learned courts below and the same has to be answered in affirmative that the impugned judgment and decrees, so passed by the learned courts below suffers from perversity for the same being passed against a dead person. In view of the finding of this Court in respect of substantial question of law No.(iii), the other two substantial questions of law are not required to be answered at this stage. 14. In the result, this Court is inclined to set aside the impugned order dated 24.09.2019, passed in Title Appeal No. 66/2017 and also the order dated 24.09.2019, passed in Misc(J) Case No. 115/2013 and also the judgment and decree, dated 30.06.2017, passed in Title Suit No. 58/2013 by the learned Trial Court. This is a clear case of remand and the matters requires fresh adjudication after disposal of the application No. 380/2014, filed by the plaintiff, under Order 22 Rule 2 of the CPC, read with Section 151 of the same, for impleadment of legal heirs of the defendant No. 10, namely Ajirom Nessa, wife of the defendant Page No.# 15/15 No. 10, as defendant No. 10A and Amin Ahmed, minor son of the defendant No. 10, represented by his mother, as defendant No. 10B. 15. And accordingly, exercising the power under Order 41 Rule 23A of the CPC, this Court is inclined to remand the matter to the learned Trial Court to decide the matter afresh, after disposing of the application No. 380/2014, dated 12.02.2014. 16. The aforementioned exercise in the considered opinion of this Court, would not cause any prejudice to any of the parties, rather it would serve the end of justice. In holding so, this Court has derived authority from a decision of Hon’ble Supreme Court in the case of P. Purushottam Reddy v. Pratap Steels Ltd. (2002) Case No.: Appeal (Civil) 679-680 of 2002 17. The parties are directed to appear before the learned Trial Court on or before 10.08.2026. 18. Registry shall urgently return the TCR to the learned trial court by a special messenger. JUDGE Comparing Assistant