” In this application under Section 115 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure read with Article 227 of the Constitution of India, the petitioner, namely, Sri Bhopal Thapa who is defendant No.8 in Title Suit No. 343 of 2011 has challenged the order dated 02.07.2014 rejecting the prayer for holding the suit as not maintainable.

2. To understand the case it is necessary to state the essential facts. The plaintiff Sri Girijesh Tiwari instituted Title Suit No. 343 of 2011 in which one Deepak Kumar Jain was arraigned as defendant No.1. Central Bank of India was impleaded as Defendant No.2 where as the defendant Nos.3 & 8 are private opposite parties. It is the case of the plaintiff that one Smt. Charu Prabha Baruah became owner of a plot of land measuring 1 Bigha covered by Dag No. 351 of K.P. Patta No. 87 in Revenue Village Jyotikuchi in Beltola Mouza, Kamrup, Guwahati, by purchasing the same from its original owner Guna Ram Mikir vide registered deed dated 04.06.1967. This Guna Ram Mikir was the father of the defendant No.3 in the present case. The seller handed over the possession of the land to Charu Prabha Baruah following execution of sale-deed and thereafter, she obtained mutation in her favour in the records of rights in place of Guna Ram Mikir. She also had been paying land revenue regularly in respect of the land described in Schedule-B to the plaint and being in the peaceful possession and enjoyment thereof sold 1 Katha 10 Lechas out of the said suit land to the plaintiff on 09.03.2007 by executing a registered sale-deed No. 3053 of 2007 with due and prior permission of the concerned authorities. Plaintiff was handed over possession of the land by Charu Prabha Baruah and he also obtained mutation in the records of right with respect to the same land. While the plaintiff was in continuous and peaceful possession of the Schedule-A land which is a part of land described in Schedule-B of the plaint, he was dispossessed by the police personnel on 29.08.2011 forcefully. Upon enquiry he discovered that her dispossession was done consequent to a decree passed by Debts Recovery Tribunal, Guwahati at the instance of defendant No.2, Central Bank. The plaintiff came to know on enquiry that defendant No.1 had mortgaged Schedule-A land in favour of the defendant No.2 Central Bank while standing Guarantee for loan granted to defendant Nos. 4, 5 & 6. The plaintiff thereafter obtained certified copies of the orders and found that the aforesaid orders were passed in O.A. 25 of 2011 by the Debt Recovery Tribunal, Guwahati. The records reveal that the defendant No.1 claimed to have purchased the same land on 16.07.1983 from the defendant No. 3 who is none other than the son of Guna Ram Mikir i.e. the person who had sold the whole of the land described in Schedule-B including the Schedule-A land to Charu Prabha Baruah, the vendor of the plaintiff, on 16.07.1983. The plaintiff was astonished to find that when father of the defendant No. 3 had exhausted his title by sale of the Schedule-B land to Smt. Charu Prabha Baruah on 04.06.1967, the defendant No. 3 could not have been left with any title to Schedule-A land which is only a part of Schedule-B land and thus, fraud was perpetrated by showing a sale of the Schedule-A land in favour of the defendant No.1, who on turn mortgaged the land in favour of defendant No.2. Neither the defendant No.1 had ever any possession over the land in question nor had he acquired any title to the suit land and so purported sale in favour of defendant No.1 followed by his mortgage of the same with defendant No.2 in securing financial assistance to defendant Nos. 4 to 6 was a fraudulent and collusive act and thus, purchase of defendant No.1 and subsequent mortgage in favour of the defendant No.2 are vitiated by fraud. With these basic facts, plaintiff approached the learned Civil Court with a prayer for decree declaring that sale- deed dated 16.07.1983 executed by