Page No.# 1/15 GAHC010008772010 2026:GAU-AS:7097 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/280/2010 ON THE DEATH OF MD. SAMIR ALI,HIS LEGAL HEIRS NAMELY- 2: MUSSTT ANJUARA BEGUM D/O LATE KHAMIR (SAMIR )ALI R/O PIYOLI PHUKAN NAGAR P.O. BAMUNIMAIDAM P.S. CHANDMARI GUWAHATI DISTRICT KAMRUP ASSAM PIN 781023 3: BEGUM ROUSHAN ARA SULTANA D/O LATE KHAMIR (SAMIR )ALI R/O PIYOLI PHUKAN NAGAR P.O. BAMUNIMAIDAM P.S. CHANDMARI GUWAHATI DISTRICT KAMRUP ASSAM PIN 781023 4: MD ZIAUR RAHMAN S/O LATE KHAMIR (SAMIR )ALI R/O PIYOLI PHUKAN NAGAR P.O. BAMUNIMAIDAM P.S. CHANDMARI GUWAHATI DISTRICT KAMRUP ASSAM PIN 781023 5: MD ZAKIR RAHMAN Page No.# 2/15 S/O LATE KHAMIR (SAMIR )ALI R/O PIYOLI PHUKAN NAGAR P.O. BAMUNIMAIDAM P.S. CHANDMARI GUWAHATI DISTRICT KAMRUP ASSAM PIN 78102 VERSUS MUSTT. RASIDA BEGUM and ORS, 2:MUSTT. RASBANU BEGUM 3:MD. MAJID ALI 4:MD. AZID ALI 5:MD. HASIM ALI 6:MD. RASTUL ALI 7:MD. BULBUL ALI 8:MD. ABBAR ALI 9:MD. AZIZUR RAHMAN CHOUDHUR Advocate for the Petitioner : MS.B R A SULTANA, Advocate for the Respondent : MR.H K DEKA, MR.B D DEKA,MR.P CHOUDHURY Page No.# 3/15 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA JUDGMENT & ORDER (ORAL) Date : 19.05.2026 Heard Mrs. B.R.A. Sultana, learned counsel for the appellant and Mr. B.D. Deka, learned counsel for the respondents. 2. This appeal under Section 100 of the CPC has been filed to assail the first appellate judgment and decree dated 15.06.2010, passed by the learned Civil Judge (Senior Division) No.2, Kamrup, Guwahati in Title Appeal No.13 of 2008, by which the appeal was dismissed and the judgment and decree passed by the learned Civil Judge (Junior Division) No. 2, Guwahati in T.S. No. 885 of 2006, was affirmed. 3. The appellant herein is the defendant and the respondent is the plaintiff in T.S. No. 25 of 2000, which was subsequently re-registered as Title Suit No.885 of 2006. 4. The case of the respondent/plaintiff is that he had purchased a plot of land measuring 1B-2K-5L, covered by Dag No.784 of KP Patta No.113 of village Malibari, Mouza Karara in the undivided district of Kamrup (as it was then), now located in the district of Kamrup. The land was purchased by registered Sale Deed No.514 of 1996 dated 14.05.1996 from its recorded owner and pattadar, namely, Md. Azizur Rahman Choudhury, the proforma defendant in the suit. After the purchase, the land was mutated in the name of the respondent/plaintiff. It is projected that after execution of the sale deed, Page No.# 4/15 possession of the land was taken over, but the appellant filed a petition under Section 145 Cr.P.C. before the Executive Magistrate, Rangia, which was registered as Case No. 128m/1996, alleging that by an agreement for sale dated 14.07.1995, the wife of the appellant entered into an agreement for sale with the same vendor, i.e. the proforma defendant No. 2. 5. Initially, the said land was attached by the learned Executive Magistrate by order dated 15.11.1996. It is projected that by an order dated 07.04.1997, the order of attachment was vacated. However, by a subsequent order dated 12.06.1997, the order of attachment was vacated and the respondent-plaintiff was given possession over the suit land. 6. Aggrieved by the order dated 12.06.1997, the appellant approached this Court and as admitted by both sides, this Court by an order passed in Criminal Revision No. 79/1999, had vacated the order of attachment and the Executive Magistrate was directed to attach the suit land and pass necessary orders after hearing both parties. Accordingly, the Executive Magistrate again re- attached the disputed land and issued both sides to appear for the inquiry and accordingly, the Officer-in-Charge of Baihata Police Station executed the order dated 10.09.1997 and attached the suit land. Subsequently, by an order dated 29.11.1999, the possession of the appellant was declared in respect of the disputed land. Moreover, direction was issued to the respondent/plaintiff to take away the thatched house within two days. The respondent/plaintiff then filed a revision before the learned Sessions Judge, Kamrup, which was registered as Criminal Revision No.79 of 1999, and the said learned Court by order dated 18.12.1999, had initially stayed the operation of the order dated 29.11.1999 by Page No.# 5/15 the order passed on 18.12.1999, but by final order dated 29.11.1999, the possession of the appellant over disputed land was declared. Accordingly, alleging that the cause of action for the suit arose on 13.11.1996, the date on which the Executive Magistrate had attached the disputed land on 29.11.1999, when the final order was passed by the Executive Magistrate, Rangia in Case No. 128m/1996, whereby possession of the suit land was declared in favor of the appellant. The suit being T.S. No.25 of 2000 was filed for declaration of right, title and interest of the plaintiff over the suit land; confirmation of possession of the plaintiff; and for permanent injunction in favour of the plaintiffs, cost and other reliefs. 7. The respondent-appellant appeared in the proceedings of T.S. No. 25 of 2000 and filed his written statement denying that the respondent-plaintiff had no right, title, interest or possession of the suit land and asserting that in respect of the land, an agreement for sale was executed by proforma defendant No.2 in favour of the wife of the respondent. Accordingly, it was stated that the vendor had no right, title, interest or possession over the suit land and therefore, the sale deed in favour of the respondent/plaintiff was false and fabricated and had no legal effect. Projecting that the appellant was in possession of the land and was carrying out any cultivation, by referring to the possession as declared by the Executive Magistrate in the proceedings under Section 145 of the Cr.P.C., it is further stated that the respondent-plaintiff to remove the thatched house constructed by the respondent during the time when the attachment order was vacated. Claiming that the appellant was the owner and possessor of the plot of land measuring 1B-2K-5L covered by Dag No.784 of KP patta No.113 of village Malibari, Mouza Karara in the district of Page No.# 6/15 Kamrup by virtue of agreement for sale dated 14.07.1995 between the Mustt. Anju Ara, the wife of the appellant, and Md. Azizur Rahman, proforma defendant No.2, followed by khas possession through delivery of physical possession of the suit land. 8. It is further stated that the proforma defendant No.2 took a sum of Rs.24,000/- as earnest money on the day of execution of the agreement for sale dated 14.07.1995 in the presence of witnesses with a regular condition that he would execute the registered sale deed after the periodic patta of land was received. It was also projected that the proforma defendant No.2 took the Earnest Money of Rs.24,000/- and on the same day executed a Baina Patra on 14.07.1995 in the presence of the writer, the defendant No.1, with a condition that the sale deed of the suit land would be made after issuance of periodic patta. Accordingly, attempts were made as the proforma defendant No.2 tried to dispossess the appellant, there was a breach of peace and accordingly, the appellant had filed proceedings under Section 145 and Section 146 Cr.P.C. before the Sub-Divisional Executive Magistrate. Accordingly, it is alleged that the respondent was not in physical possession of the disputed land. Accordingly, claiming that the appellant was not in possession of the suit land and the balance of convenience was in favour of the appellant, being in regular possession of the suit property, prayer was made to dismiss the suit. 9. The learned trial Court framed following issues on 21.01.2003: (1) Is there any cause of action for the suit? (2) Is the suit barred by limitation? (3) Whether the plaintiff has right, title, interest and possession over the suit land. (4) Whether the plaintiff is entitled to get the relief as prayed for? Page No.# 7/15 (5) To what other reliefs the parties are entitled to? 10. The learned Munsif No.2, Kamrup at Guwahati, framed following additional issue: Whether this suit is bad for non-joinder of necessary party? 11. The learned trial Court, by referring to the additional issue so framed in respect of the additional issue, it was held that this suit was not bad for non- joinder of necessary parties. In respect of issue No.2, 3 and 5, the learned trial Court held that the suit was barred by limitation as the final cause of action arose on 29.11.1999 and the suit was instituted on 24.01.2000. In respect of issue No.3, it was held that the execution of Ext.1 was proved by PW-2 and accordingly, the respondent-plaintiff was held to have the right, title, interest and possession of the suit land. In respect of issue No.1, it was held that there was cause of action for the suit. In respect of issues Nos. 4 and 5 and the additional issues, the learned trial Court held that the respondent-plaintiff was entitled to get declaration of his right, title, interest and confirmation of possession of the suit land and the suit was decreed with costs. 12. Upon appreciating the evidence and pleadings on record and after hearing the counsel for both sides, the learned first appellate Court was of the view that the point of determination in this case was as to whether the respondents had right, title, and interest over the suit land and with regard to the additional issue, it arrived at the finding that the additional issue was framed at the time of writing the judgment, which was in violation of law laid down under Order XIV Rule 3 of the CPC, as the parties to the case were not given an opportunity to prove the said issue. Accordingly, it was held that in view of the Page No.# 8/15 admission, the evidence of the appellant had lost relevance in the present case. Resultantly, after discussing the issue Nos.1 and 2, answered all the issues in favour of the appellant and accordingly, as the answer of issue nos. 4 and 5 was affirmed, the appeal was dismissed with no orders as to costs. 13. This appeal was admitted for hearing by order dated 31.07.2012 to the following effect: Whether the suit is barred by limitation in view of the provision of Article 58 of the Limitation Act, 1963, on the basis of the pleaded cause of action by the plaintiff? Whether by not affording opportunity to prove or disprove the additional issue as framed during the writing of the judgment, the trial Court has committed illegality? 14. Referring to the facts of the case, it has been submitted that the suit was bad for non-joinder of necessary parties as there were other patta holders whose presence was mentioned in the written statement filed by the appellant, stating that Achina Bibi, Samad Ali, and Anju Ara Begum, are necessary parties to the suit. It is also submitted that as per Article 58 of the Schedule to the Limitation Act, which is in respect of the suits relating to declarations, the period of limitation to obtain any such declaration is three years when the right to sue first accrues. By referring to the statements made in the plaint, it is submitted that as per the statement made in paragraph 14 of the plaint, the cause of action first arose on 13.11.1996, the date on which the Executive Magistrate had attached the suit land. It is submitted that subsequent cause of action arose on 29.11.1999, the date when the final order was passed by the Executive Magistrate. In this regard, it is stated that as Article 58 of the Schedule to the Page No.# 9/15 Limitation Act refers to the right to first sue, the said cause of action had arose on 13.11.1996. Therefore, the suit which was filed on 24.01.2000 was barred by limitation. 15. It is pleaded that all throughout the land was in possession of the appellant and only in the course of the proceedings before the Executive Magistrate, the respondent had taken over the possession of the suit land by dispossessing the appellant. It was stated that in paragraph 9 of the written statement, a specific plea was taken that the appellant had filed a suit for specific performance of contract. It was further submitted that although no ground had been taken, in fact, that the decree passed by the learned Civil Judge (Junior Division) No. 1, Guwahati, and the appellate judgment and order passed by the learned Civil Judge (Senior Division), Guwahati, but the Court of learned Civil Judge (Junior Division) at Rangia Sub-Division was the jurisdictional Court and therefore, after bifurcation of the district of Kamrup into two, the proceedings before the Court of Civil Judge (Junior Division) No. 2 at Guwahati, which is in Kamrup Metropolitan District, and the consequential appeal were also without jurisdiction. 16. 16. In this regard, the learned counsel for the appellant has placed reliance on a decision of the Supreme Court of India in the case of Chandra Bhushan Khanna and Ors. v. Brij Nandan Singh, AIR 1978 Allahabad 459 and also the case of Kiran Singh and Others v. Chaman Paswan and Others, AIR 1954 SC 340. In the case of Chandra Bhushan Khanna (supra), it is held that if the Court lacks inherent jurisdiction to prior suit, consent, waiver or acquiescence parties to suit cannot confer it. By further holding that delay in taking objection to Page No.# 10/15 jurisdiction in Court cannot be a ground for conferring jurisdiction impliedly. The case of Kiran Singh (supra) was pressed on the point that a decree passed without jurisdiction is a nullity. 17. Per contra, the learned counsel for the respondent has submitted that though the ground of non-joinder of necessary parties was taken, the same was not pressed when the issues were framed. Moreover, he has submitted that though the learned counsel for the appellant is projecting that the appellant was in possession of the suit land, but in cross-examination of DW-1, Samed Ali, the defendant-appellant had admitted that the land was in the possession of the respondent-plaintiff. It is submitted that once a suit for specific performance of contract was filed, this is a case where the appellant is claiming possession on the basis of an agreement for sale, whereas the said land was sold by the vendor by executing a registered Sale Deed No. 514 of 1996. 18. It is submitted that merely because two dates of cause of action were mentioned in the plaint, but the order dated 15.11.1996 was only an interim order of attachment, which makes the property custodia legis, which is always subject to the final orders where possession is declared. Accordingly, it is submitted that as the appellant was held to be in possession by order dated 29.11.1999, the suit which was filed on 24.01.2000 was within the period of limitation prescribed under Article 58 of the Schedule to the Limitation Act. 19. By referring to the statement made in paragraph 14(D) of the written statement, it is stated that the pleaded case of the appellant was that they were in possession of the suit land, which is contrary to the statement made in cross- examination by the appellant, and the cause of action would always be the Page No.# 11/15 date of 29.11.1999, by which the respondent was declared to be in possession of the suit land. 20. In support of the said submissions, by referring to the case of Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 348, to support the submissions that during orders of attachment, the property is in custodia legis of the Magistrate, who is holding the said property on behalf of the party who will be successful before the competent Court by establishing his right to possession of the property. Accordingly, it is submitted that it will always be the civil Court's order that will prevail and not the finding recorded by the criminal Court, even if it is passed in a proceeding under Section 145 Cr.P.C. 21. With regard to the issue of non-joinder of necessary parties, it is submitted that the parties had contested the suit knowing their respective cases. Accordingly, the additional issue that was framed by the learned trial Court at the time of writing the judgment could not be fatal for either party and therefore, there was no necessity to give any opportunity to the parties to prove or disprove the additional issue which was framed at the time of judgment- writing. 22. The first substantial question of law is being taken up for decision. All throughout the case of the appellant is that they were in possession of the suit land, which is also reflected in paragraph 14(D) of the written statement, whereby the appellant's claimed to be in possession of the suit land. It is only for the first time in the cross-examination of DW-1 that the respondent had admitted that the land was in possession of the respondent/plaintiff. The said cross-examination was on 24.01.2005. Thus, on 13.11.1996, the same was the Page No.# 12/15 date when the learned Executive Magistrate had attached the land pursuant to orders passed in Case No. 128m/1996 and in the considered opinion of the Court, the mere attachment of land does not establish or extinguish the right of any of the parties to a proceeding under Section 145 CrPC. Therefore, it can be safely said that the cause of action for the suit arose on 29.11.1999, when the final order was passed by the learned Executive Magistrate in Case No. 128m/1996, thereby declaring that the appellant was in possession of the suit land. Therefore, based on that, the execution of the valid sale deed, which is not under question, the suit filed by the respondent-plaintiff on 24.01.2000 was filed within 3 years from the date when the cause of action first arose. Merely because another date has been provided in the paragraph relating to cause of action, does not give rise to a cause of action. 23. It is too well-settled that cause of action is a bundle of facts and each fact must be examined on its own merit and in the plaint, it is clearly stated that the cause of action of 13.11.1996 arose from the order of attachment passed by the learned Executive Magistrate, the same does not take away any right of the respondent-plaintiff. Such right is bound to be questioned when the order dated 29.11.1999 was passed. Therefore, the first substantial question of law is answered by holding that the suit filed by the respondent-plaintiff was not barred by limitation as prescribed under Article 58 of the Schedule to the Limitation Act on the strength of the cause of action by the respondent-plaintiff. 24. Coming to the substantial question of law No. 2, which is whether by not affording an opportunity to prove or disprove the additional issue, the learned trial Court had committed illegality? Page No.# 13/15 25. It is stated that though in paragraph 3 of the written statement, the appellants had taken a plea that the suit is barred for non-joinder of necessary parties, namely Achina Bibi, Samad Ali and Anju Ara Begum. The said plea was not taken in the evidence on affidavit filed by the appellant before the learned trial Court. However, the plea is again renewed in the memo of appeal as a ground for assailing the trial Court order in the first appellate Court. Therefore, as the plea of non-joinder of necessary parties was not framed when the issues were settled, as none of the parties were put to notice of the same, this led the appellant-defendant not to lead evidence on the non-joinder of necessary parties. In the considered opinion of the Court, as both sides had contested the case with the full knowledge about the non-pleading of the three parties referred to in the written statement, the appellant cannot be said to be prejudiced by not affording any opportunity to prove or disprove the additional issues. 26. There is another reason to take the said view. As per the provisions of Rule 9 of Order I of the CPC, it is provided that no suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter of controversy so far as regards the rights and interests of the parties actually before it. 27. Therefore, the point is that Anju Ara Begum, who is the wife of the appellant is clearly a holder of an agreement to sell and the suit that was taken by her for enforcing specific performance of contract. Therefore, the title of the respondent having derived from the vendor who is made a proforma respondent, in the absence of any evidence by the appellant-defendant, it Page No.# 14/15 cannot be said as to how Achina Bibi, Samad Ali and Anju Ara Begum are necessary parties to the suit. Therefore, the second substantial question of law is answered by holding that the learned trial Court did not commit any illegality in deciding the additional issue, which was framed during the judgment-writing. 28. The further plea was taken that the suit of the plaintiff was without territorial jurisdiction. The decision of the Supreme Court of India in the case of Kiran Singh and Ors. (supra) was rendered prior to the amendment of the provisions of Section 21(2) of the CPC, which came to be inserted by Act 104 of 1976 with effect from 01.02.1977, whereas the said judgment was rendered on 14.04.1954. Under the provisions of Section 21 (2) of the CPC, no objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. 29. Moreover, the erstwhile unified district of Kamrup was bifurcated into two administrative districts, namely Kamrup Metropolitan and Kamrup Rural in the year 2003. However, the judicial Court in Kamrup Rural, with its headquarter at Amingaon, was officially inaugurated on 19.02.2014, which was prior to the passing of the judgment by the learned trial Court and the first appellate Court. Therefore, with the district headquarter at Guwahati, when the undivided Kamrup District was there, it cannot be said that the retaining of the suit at the district headquarter at Guwahati would be bad for want of jurisdiction, as the District Judge would be the administrative Court for the Courts at Guwahati and Page No.# 15/15 even the Sub-Division Court at Rangia. Therefore, though the issue of territorial jurisdiction was never raised in the suit and no substantial question of law was framed, yet, as the learned counsel for the appellant had taken a plea, the same has been answered. 30. Resultantly, in that view of the discussions above, this appeal is dismissed. The registry shall drop the consequential decree. 31. The records of the learned trial Court and the first appellate Court shall be returned. JUDGE Comparing Assistant