Page No.# 1/15 GAHC010117482024 2026:GAU-AS:7696 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/64/2024 BIKASH KUMAR SETHIA S/O- PRAHAND SETHIA, A R/O- WARD NO-4, GAURIPUR TOWN, P.O AND P.S- GAURIPUR, DIST- DHUBRI, ASSAM, PIN-783331 VERSUS ON THE DEATH OF AZIZUR RAHMAN HIS LEGAL HEIRS TAHMINA KHANOOM AND ORS SK. MISS TAHMINA KHANOOM, W/O-LATE AZIZUR RAHMAN 1.2:ANJUARA AZIZA KHANOOM D/O- LATE AZIZUR RAHMAN 1.3:ARIFA AZIZA KHANOOM (MINOR) D/O- LATE AZIZUR RAHMAN 1.4:TAMIN KHAN (MINOR) S/O- LATE AZIZUR RAHMAN BOTH THE ABOVE NAMED 1.3 AND 1.4 ARE THE MINORS AND REP. BY THEIR MOTHER AND NATURAL GUARDIAN SK. MISS TAHMINA KHANOOM. ALL THE ABOVE NAMED 1.1 TO 1.4 ATE THE R/O WARD NO-6 N.S ROAD DHUBRI TOWN P.O AND P.S- DHUBRI ASSAM PIN-783301 Page No.# 2/15 2:HASNEHARA BEGUM W/O- LATE ABDUL WAHED R/O- VILLAGE- JHAWDANGA P.O AND P.S- MANKACHAR DIST- SOUTH SALMARA (ERSTWHILE DISTRICT- DHUBRI) ASSAM PIN-78313 Advocate for the Petitioner : MR. T K BHUYAN, MR. C TALUKDAR,A GAUTAM,MR. S K DEKA,MR. J DEKA,MR. S SARMA Advocate for the Respondent : MR. M S ALAM (R-1,1.4), K M KALITA (R-2) BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 02.06.2026 Heard Mr. S. Sharma, learned Senior Counsel, assisted by Mr. T.K. Bhuyan, learned counsel for the petitioner and Mr. M.S. Alam, learned counsel for the respondent No. 1 and Mr. K.M. Kalita, learned counsel for the respondent No.2. 2. Correctness or otherwise of the judgment and order, dated 30.04.2024, passed by the learned Civil Judge, Sr. Divn. Dhubri in Misc. Appeal No. 02/2024, is being challenged in this petition, under Article 227 of the Constitution of India, by the petitioner, namely, Bikash Kumar Sethia. 3. It is to be noted here that vide impugned judgment and order, dated 30.04.2024, the learned Civil Judge, Sr. Division, Dhubri (herein after First Appellate Court) had dismissed the Misc. Appeal No. 02/2024,filed under Section 104 read with Order 43 Rule 1(K) and (I) of CPC, and thereby affirmed the order dated 05.10.2023, so passed by the learned Munsiff No.1 [now Civil Judge, (Jr. Division) No.1], Dhubri Page No.# 3/15 (herein after the learned Trial Court) had dismissed the petition No. 2484/22 filed by the petitioner herein, under Order XXII Rule 9(2) and Rule 10(1) CPC, for setting aside the abatement order passed against deceased plaintiff No. 1, namely, Noor Neher Bewa, as her assignee, in Title Suit No. 337 of 2008. Background Facts:- 4. The background facts leading to filing of the present petition is briefly stated as under:- That, one Nurun Nehar Bewa, wife of Late Kazi Nazrul Islam and two others, had filed a suit, being Title Suit No.337/2008, for declaration, partition and allotment of share of the schedule property and same is pending for disposal before the Court of the learned Munsiff No.1 [now Civil Judge, (Jr. Division) No.1], Dhubri. During the pendency of the suit, plaintiff No.1 died on 12-03-2021. As no steps were taken to substitute the legal heirs of the deceased Plaintiff No.1, the suit was abated against her vide order dated 09.11.2022. The plaintiff No.1 and 2 through their attorney had executed a registered Deed of Assignment vide registered Deed No.58 dated 24.05.2011 in favour of the present petitioner with certain terms and conditions. And as the right to sue survives in favour of the present petitioner, being the assignee of the Plaintiff No.1 and 2, had filed a petition No.2484/22, dated 14.12.2022, under Order XXII, Rule 9(2) read with Order XXII Rule 10(1) of the Code of Civil Procedure, 1908 for setting aside abatement as well as for his substitution in place of the deceased plaintiff No.1. But, the learned trial court, vide impugned order dated 05.10.2023, passed in Page No.# 4/15 T.S.No.337/2008, rejected the aforesaid petition No.2484/22 dated 14.12.2022. Being aggrieved by the said order dated 05.10.2023, the petitioner had preferred Misc. Appeal No.02/2024. But, vide Judgment dated 30.04.2024, the appeal of the petitioner was dismissed and the order dated 05.10.2023 was upheld. And being aggrieved by the said impugned judgment dated 30.04.2024 passed by the learned First Appellate Court in Misc Appeal No.02/2024, present revision petition is filed. Grounds for revision:-- 5. The petitioner has preferred the present revision petition on the following grounds:- A. The impugned judgment dated 30.04.2024, is whimsical and mechanical one which is the result of non-application of judicial mind; B. The impugned Judgment dated 30.04.2024, is illogical, capricious and it failed to exercise the jurisdiction vested on it which has caused a grave failure of justice. C. The learned Court below had exercised its jurisdiction illegally and committed material irregularity while passing the impugned judgment dated 30.04.2024, and as such same is not tenable in the eyes of law; D. The learned Trial Court as well as the First Appellate Court below totally overlooked the application filed by the appellant under Order XXII, Rule 9(2) read with Order XXII Rule 10(1) of the Code of Civil Procedure, 1908 and in a routine manner passed the impugned order. Page No.# 5/15 E. For that, both the learned Court below, while rejecting the prayers of the petitioner, had exceeded its jurisdiction vested in it under the Code of Civil Procedure, 1908, and passed the impugned order in gross violation of the settled principles of law. Both the learned Court below failed to hold that the petitioner herein is the assignee of the deceased Plaintiff No.1 as well as plaintiff No.2 despite of there being a registered Deed of Assignment. Moreover, both the learned court below wrongly interpreted the recitals of a registered instrument which is ex facie wrong and perverse. F. The learned Appellate Court had failed to understand the recitals of the said Deed of assignment and came to a perverse finding that the disputed deed of assignment is nothing but the sale deed in disguise, which is not enforceable as provided under Section 17 of the Special Relief Act as well as Section 7 of the Transfer of Property Act and Section 32 of the Contract Act. The learned Court below came to a finding that the ownership/title of assignor i.e. Plaintiff No.1 and 2 is sub-judice and assignment deed cannot be executed in respect of immovable property if the assignor has got no title to the property. This finding of the learned court below is not correct inasmuch as there was no transfer of property by way of the said Deed of assignment. The assignment deed clearly asserts that the assignees had only assigned their legal and legitimate 3/4th share of schedule-A property in favour of the present Appellant which may be granted by the court by deciding the suit, meaning thereby if the plaintiff No.1 and 2 succeeds in the suit and get a decree in their favour, then only transfer of legitimate 3/4th share of schedule-A property will come to effect. In other words, the transfer of schedule property vide assignment deed will be subject to the decision of the suit. This aspect of the matter was neither discussed nor considered by the learned court below and came to perverse and illogical findings. Page No.# 6/15 G. For that, the learned Court below, without any prayer for declaration from either party, came to a finding that the assignment deed in question is illegal, that too without there being any trial. Such finding of the learned court below is completely illegal and shows non application of mind. That, in a judicial proceeding, without there being any pleading and prayers as well as evidence on record, a registered document cannot be declared as illegal. H. For that, both the learned Courts below came to a wrong and perverse finding that the petitioner has no locus standi to file a petition for setting aside the order of abatement whereas vide registered deed of assignment dated 18.04.2011, the petitioner was made assignee of the plaintiffs. In clause 4 of the said deed of assignment, the petitioner was assigned every right to contest any suit including the connected suit being T.S No.337/2008 as well as to file any other suit in his name to protect the property involved. However, both the learned Courts below did not even consider the evidentiary value of the said deed of assignment and mechanically and without applying its judicial mind passed the order dated 05.10.2023 as well as impugned Judgment dated 30.04.2024. I. The learned Court below came to a finding that as the petitioner is one of the defendants in the suit and he filed the written statement denying the claim of the plaintiffs and as such the case of the petitioner would be hit by the principle of estoppels by inconsistent position. This finding of the learned court below is totally incorrect because of the fact the petitioner approached the learned Trial Court seeking leave to represent the plaintiff No.1 being her lawful assignee which is permissible under Order 22, Rule 10(1) CPC. Whether the petitioner is a party to the suit or not is not material to decide an application under Order 22, Rule 10(1) CPC. The petitioner did not sought for any leave from the learned trial court for transposition from defendant to Plaintiff. Page No.# 7/15 Therefore, the finding of the learned court below is totally misconceived. J. The learned appellate court failed to appreciate the grounds of appeal set forth in the appeal memo. K. Both the learned Courts below failed to take into consideration the fact that the right, title and interest of the plaintiffs are involved in the connected suit and it requires a full fledged trial. The participation of the parties in trial of the suit is necessary and as such if the legal representative of the Plaintiff No.1 is not allowed to participate in the suit, it will be amount to a miscarriage of justice. L. Both the learned Courts below did not even discuss about the power of the court as provided under Order 22, Rule 9(2) and Order 22 Rule 10(1) CPC and its applicability in the instant case in hand. Submission of learned counsel for the petitioner:- 6. Mr. Sharma, learned counsel for the petitioner, submits that the impugned judgment of the learned Appellate Court and the order of the learned Trial Court are illegal and arbitrary and contrary to the provisions of CPC as well as Transfer of Property Act. And under such circumstances, he submits that the impugned judgment and order requires interference of this Court as they failed to withstand legal scrutiny. Submission of learned counsel for the respondents:- 7. Per contra, Mr. Alam and Mr. Kalita, learned counsel for the respondent Nos.1 and 2, have supported the impugned judgment and order passed by the learned Appellate Court and Trial Court. According to them, the judgment and order impugned in this petition, suffers from no illegality requiring any interference of this Court. It is Page No.# 8/15 their further submission that the petitioner, in a same proceeding cannot take two inconsistent plea and that such plea lacks bonafide. Therefore, it is contended to dismiss the same. Finding of the learned Trial Court:- 8. The Ld. Trial court had recorded its finding as under:- "As per the deed submitted by the petitioner which is registered as deed of assignment the deceased plaintiff No.1 and plaintiff No.2 have transferred the share of land and title which they have sought as relief in this case. The petitioner under the garb of transfer of actionable claim is purporting to obtain right, title, interest over immovable property, which has not been envisioned under the Transfer of Property Act, 1882. Moreover, the plaintiffs are seeking share in their deceased brother's immovable property but the wife of their brother claims that she was gifted the entire suit properly and therefore, the crux of the present suit is whether the plaintiffs have any share In their brother's property in the first place. Therefore, at this stage, it cannot even be determined whether plaintiff No.1 and plaintiff No.2 are competent to transfer under Section 7 of Transfer of Property Act, 1882. Therefore, in light of all the above discussions and consideration, I am unable to hold that the petitioner as assignee of the plaintiffs and therefore, he has no locus-standi to file a petition for setting aside the order of abatement against plaintiff No.1 and the petition is not maintainable and hence, rejected". Finding of the learned Appellate Court:- Page No.# 9/15 9. While upholding the finding so recorded by the learned trial court the learned appellate court has held as under:- Now, if we see the recital of the assignment deed vis-a-vis the aforesaid observation of learned trial court, we will find that the observation of the learned trial court appears to be logical and correct, because assignment deed in dispute is nothing, but the sale deed in disguise which is not enforceable in view of section 32 of Contract Act read with section 17 of the Specific Relief Act read with section 7 of Transfer of Property Act as the ownership/ title of assignor i.e. plaintiff No.1 and 2 is sub-judice and the assignment deed cannot be executed in respect of immovable property if the assignor has got no the title to the property. That apart, the assignment deed in favour of the petitioner/appellant, namely, Sri Bikash Kumar Sethia also appears to be illegal and not sustainable in the eye of law as he is one of the defendant in the original suit i.e. Title Suit No.337/2008, wherein he is arrayed as defendant No.3; and said defendant No.3/ Assignee, in his written statement on affidavit had categorically stated that the plaintiff No.1 and 2 had no share in the suit property as the original owner i.e. A. M. Samsul Bari has already gifted the suit land in favour of his wife i.e. Defendant No.1. And now, surprisingly, the same defendant had appeared before the learned trial court with a prayer for according him a permission to step into the shoes of plaintiff No.1 and 2 as 'Assignee', to agitate their alleged right which is not permissible as the same person cannot be array as both the plaintiff and defendant in same suit with contradictory pleas. The conduct of the petitioner would be hit by the principle of estoppel by inconsistent position. Hence, under the above facts and circumstances, I am constrained to hold that the appellant has no locus-standi to file petition for according permission to represent the plaintiff in the suit on the basis of illegal assignment deed Page No.# 10/15 and further has got no locus-standi to make a prayer for setting aside the abatement order passed against the plaintiff no.1 in order dated 09.11.2022. 10. Hence, in the light of foregoing discussion, I am constrained to hold that the order dated 05.10.2023 passed in Title Suit No.337/2008 is justified and hence, sustainable in law and facts. 11. Accordingly, in the above backdrop, the order dated 05.10.2023 passed by the Ld. Trial court is hereby upheld. In consequence, the appeal is dismissed on contest. Finding of this court:- 10. Having heard the submissions of learned counsel for both the parties this court has carefully gone through the petition, and the grounds mentioned therein, and also perused the impugned order, so passed by the learned first appellate court and the order, so passed by the learned Trial Court in Title Suit No. 337 of 2008. Also gone through the relevant provisions of law. The relevant Provisions:- 11. In the instant petition, the relevant provisions are as under:- (i) Order 22 Rule 3 CPC: This Rule deals with the death of a plaintiff (or one of several plaintiffs). The suit does not abate if the right to sue survives. An application for substitution of legal representatives (LRs) must typically be filed within 90 days (Article 120, Limitation Act). The court can allow continuation by the legal representatives. (ii) Order 22 Rule 10 CPC: This Rule applies to assignment, creation, or devolution of interest during the pendency of the suit (transferee pendente lite). The suit may, by leave of the court, be continued by or against the person upon whom the interest has devolved. This is discretionary. 12. Thus, it becomes apparent that any party can file an application for substitution Page No.# 11/15 of legal heirs upon a party's death. It is not restricted to the plaintiff/appellant side. The defendants or other interested parties can move the court to bring legal representatives on record to prevent abatement. 13. From this stand point an assignee of the (deceased) plaintiff also qualifies as a person claiming under the plaintiff or having a devolved interest, to continue the suit, under Order 22 Rule 10, especially if the assignment occurred during the pendency of the title suit. Courts have recognized that assignees/transferees pendente lite have locus to apply for continuation or impleadment. Section 146 CPC (proceedings by persons claiming under a party) also supports this in a broader sense. Factors usually considered :- 14. A Title suit usually involves rights that survive death, so the suit does not automatically end. Although the petitioner is already defendant opposing the plaintiff's claim but holding an assignment from the plaintiff, this creates a somewhat unusual position. In such circumstances the courts usually considers the followings:- (i) Validity and timing of the assignment. (ii) Whether the interest of the petitioner is bona fide and aligns with continuing the suit. (iii) No collusion or fraud. (iv) When the petitioner files an application under Order 22 Rule 10, along with deed of assignment and the plaintiff's death. 14.1. However, it is well settled that it is discretion of the court and not an absolute right. Decisions of Hon’ble Supreme Court on this point:- 15. Relevant decision of Hon’ble Supreme Court on this points are as under :- (i) In the case of Savitri Devi v. District Judge, Gorakhpur and others, reported in (1999) 2 SCC 577, Hon’ble Supreme Court has discussed Page No.# 12/15 Order 22 Rule 10 CPC in the context of assignees/transferees pendente lite. It held that a person acquiring interest by assignment during the suit's pendency can apply to be impleaded or to continue the proceedings. It has been emphasized considering Section 52 of the Transfer of Property Act (doctrine of lis pendens) alongside this rule. Assignees are not entitled as of right, but may seek leave of the court. (ii) In the case of H. Anjanappa and Others vs. A. Prabhakar and Others … reported in 2025 SCC OnLine SC 183, Hon’ble Supreme Court has clarified the position as under: o A transferee pendente lite (assignee during pendency) can seek impleadment under Order 22 Rule 10 CPC (or even Order 1 Rule 10 CPC, as their scopes are similar). o It is not as of right; the court has discretion based on the facts, nature of the suit (e.g., title suit), and material on record. o Even if not brought on record, the assignee remains bound by the outcome due to lis pendens. O Such a person can apply on their own or at the instance of a party. (iii) Again in the case of Mithailal Dalsangar Singh and others v. Annabai Devram Kini and others, reported in (2003) 10 SCC 691, Hon’ble Supreme Court has dealt with the issue of substitution of legal representatives and setting aside abatement. It supports a liberal approach where applications for substitution (including by interested parties/assignees) are considered to prevent technical dismissals, provided sufficient cause is shown for any delay. It reinforces that any interested person (not just the plaintiff side) can move for continuation if the right survives. 16. In a Title Suit, property rights typically survive death, so the suit does not abate Page No.# 13/15 automatically. As a defendant-assignee of the (deceased) plaintiff, he can file an application under Order 22 Rule 10, read with Rule 3 if needed for legal representratives to continue or be substituted, especially if the assignment was during pendency. 16.1. The court will scrutinize the bona fides of the assignment, timing, and whether it advances justice without collusion. 17. The plaintiff no. 1 in the present suit has passed away and as no legal heirs were brought on record, the suit abated against plaintiff no. 1 vide order dated 09.11.2022. In the instant case, the petition no. 2484/22 was filed by the petitioner Bikash Kumar Sethia for setting aside the abatement order passed against deceased plaintiff No. 1 Nur Nehar Bewa, under Order XXII Rule 9(2) read with Order XXII Rule 10(1), being her assignee. 18. The petitioner herein is defendant No.3 in the Title Suit No. 337/2008. He filed written statement with affidavit, wherein he categorically stated that the plaintiff No.1 and 2 have no share in the suit property as the original owner i.e. A. M. Samsul Bari had already gifted the suit land in favour of his wife i.e. the defendant No.1, in his presence and also in presence of one Moksed Ali, Syed Aslam Ali, Sakina Bewa, Azizur Rahman. Now he is claiming to be the assignee for both plaintiff 1 and 2 on strength of deed of assignment, executed by both 24.05.2011, vide deed of assignment No.58, before the Sub-Registrar, Hatsingimari. 19. Since it is well settled that irrespective of being plaintiff or defendant any one can file the petition for substitution of legal heirs of any plaintiff or defendant on account of his or her death, that part of the prayer of the petitioner, cannot be said to be unjustified. 20. But, the question is, can the petitioner, who is the defendant No.3 in the Title Page No.# 14/15 Suit No. 337/2008, and who denied the right, title and interest of the plaintiffs over the suit property in his written statement, can now be allowed to step in to the shoes of plaintiffs No. 1 and 2, on the strength of the deed of assignment, by way of substitution. It is noteworthy that in the event of such prayer being allowed, he would support the case of the plaintiffs No.1 and 2. Thus, his stand in the suit would not only be diametrically opposite but also would be inconsistent. The issue of estoppels also arises here. And the learned Appellate Court has rightly noted the same. Thus, allowing it could amount to permitting inconsistent pleas that would undermine the sanctity of pleadings. 21. And as such there is a requirement of examination as to whether the assignment is genuine, valid and executed with free consent, and not collusive. In view of the challenge made by the petitioner in his written statement regarding plaintiffs’ title, the assignment’s validity itself is under the cloud of suspicion, which requires scrutiny for bonafide and separate adjudication. 22. Indisputably, the power of the court is discretionary. And by exercising the power of discretion and also by assigning reasons, both the learned court below had rejected the prayer of the petitioner by assigning reasons. The reason, so assigned by both the courts below, cannot be said to be illegal or irregular or arbitrary, in view of the peculiar factual matrix of the case. 23. It is well settled that the High Court, under Article 227 can interfere with a Trial Court's discretionary refusal to relief, but only in exceptional cases involving jurisdictional error, patent illegality, perversity, or grave miscarriage of justice. It cannot act as an Appellate Court or substitute its own discretion, merely because another view is possible. Reference in this context can be made to a decision of Hon’ble Supreme Court in Essen Deinki v. Rajiv Kumar reported in (2002) 8 SCC 400, wherein Hon’ble Supreme Court held that the High Court, under Article 227, cannot interfere with findings of fact or discretionary orders of subordinate courts, Page No.# 15/15 where two views are possible or where the order is not perverse. The power is meant to correct serious derelictions of duty or jurisdictional errors, not to re-appreciate evidence or correct every error. Again in the case of Waryam Singh v. Amarnath reported in (1954) SCR 565, a Constitution Bench of Hon’ble Supreme Court has clarified that the power of superintendence under Article 227 must be exercised sparingly and only in appropriate cases to keep subordinate courts within the bounds of their authority — not for correcting mere errors of fact or law. Further in the case of Surya Dev Rai v. Ram Chander Rai and others, reported in (2003) 6 SCC 675, Hon’ble Supreme Court laid down detailed principles for interference under Article 227, and held that High Court can interfere when a subordinate court has: o Assumed jurisdiction it does not have, or o Failed to exercise jurisdiction it has, or o Exercised jurisdiction in a manner not permitted by law, causing grave injustice. 23.1. However, it is not a substitute for appeal/revision, and interference with pure discretionary orders is limited. It is worth noting that parts of this judgment regarding Article 226 were later clarified/overruled in Radhey Shyam v. Chhabi Nath, but the Article 227 principles remain relevant.) 24. Thus, having examined the impugned judgment and order in the light of given factual and legal matrix, this Court finds that there is no merit in this petition. And accordingly, the same stands dismissed, leaving the parties to bear their own costs. JUDGE Comparing Assistant