The jurisdiction of civil courts is barred under Section 154(1)(e) of the Assam Land Revenue Regulation if the plaintiff is not in possession of the land and fails to meet the conditions for imperfect partition.

JUDGMENT :

J.B. PARDIWALA, J.

For the convenience of exposition, the present judgment is divided into the following parts:

1. Leave granted.

2. This appeal arises from the judgment and order passed by the Gauhati High Court in Regular Second Appeal No. 243/2014 dated 22.08.2022, by which the second appeal filed by the respondents herein (original defendants) came to be allowed thereby setting aside the Judgment and order passed by the First Appellate Court and restoring the Judgment and decree passed by the Trial Court.

3. For the sake of convenience, the appellant – herein shall be referred to as the original plaintiff and the respondents – herein shall be referred to as the original defendants.

A. FACTUAL MATRIX

4. The facts giving rise to this appeal may be summarized as under.

a. It is the case of the appellant herein (original plaintiff) that sometime in 1973, the respondents herein (original defendants nos. 1 and 2 respectively) acquired ownership of 02 katha and 10 lechas of land of one Javed Ali by inheritance. Pursuant thereto, the respondent nos. 1 and 2 respectively as joint owners took over possession of their respective shares each admeasuring 01 katha and 05 lechas.

b. The respondent no. 1 herein vide two separate registered sale deeds dated 18.05.1977 and 25.07.1977 respectively sold his entire 01 katha and 05 lechas of the land in Dag No. 787 of PP No. 127 situated in Nagaon to the appellant herein in the following manner:

i. Registered sale deed no. 3198/77 for 01 katha of land.

ii. Registered sale deed no. 6292/1977 for 05 lechas of land.

c. Possession over the said portion of the land was handed over to the plaintiff. However, soon thereafter, defendant nos. 1 and 2 tried to forcibly dispossess the plaintiff from the suit property.

d. Aggrieved by the forcible dispossession, the appellant herein instituted Title Suit No. 67/1979 for confirmation of his right, title and interest and declaration of possession over the suit land admeasuring 01 katha 05 lechas covered by Dag. No. 787.

e. The Title Suit No. 67/79 instituted by the plaintiff came to be decreed in favour of the plaintiff vide judgement and order dated 29.06.1981. Aggrieved by the same, the defendants preferred an appeal against the judgment. The appeal came to be allowed and the matter was remanded back to the Trial Court for fresh consideration in light of the non-joinder of necessary parties.

f. Upon fresh trial subsequent to the aforesaid judgment, Title Suit No. 67/79 instituted by the plaintiff came to be dismissed by the court of Munsif vide judgement dated 17.09.1990 holding that although the appellant had acquired right, title and interest over the suit property yet no effective decree could be passed due to non-joinder of necessary parties.

g. In view of the aforesaid, the plaintiff herein preferred Title Appeal No. 59/1990 before the Assistant District Judge, Nagaon, Assam seeking to challenge the judgment and order passed by the court of Munsif referred to above.

h. The Appellate Court vide order dated 20.04.1993 passed in Title Appeal No. 59/1990 held that the appellant herein was entitled to a decree for declaration of right, title and interest and also joint possession of suit land along with other co-pattadars. However, the Appellate Court held that as the appellant could not be delivered possession of the suit land, he would be at liberty to seek appropriate remedy, seeking partition of the suit land.

i. The defendants herein preferred Second Appeal No. 77 of 1993 before the Gauhati High Court which came to be dismissed vide judgment and order dated 22.10.1998. As a result, the decree passed by the fir