Back
2017 Supreme(Gau) 1546
IN THE HIGH COURT OF GAUHATI
PRASANTA KUMAR DEKA, J.
Anowar Hussain and Ors. - Appellants
Versus
Jamal Uddin and Ors. - Respondents
RSA No. 2 of 2007
Decided on : 01-12-2017
Advocate Appeared:
For the Appellant : Mr. S.P. Choudhury
For the Respondent: Mr. M.H. Rajbarbhuiyan
Headnote:
Code of Civil Procedure, 1908 – Order XLI, Rule 22, Order XLI, Rule 31 – Title of Land – In Question – Appellants before this court are plaintiffs in Title Suit in the court of Civil Judge (Jr. Div.) No. 1, and the respondents are the defendants in the said Title Suit – Held, Title of the respondent cannot be declared until and unless there is a counterclaim which is also another ground in the said objection though no directly – Dismissal of a suit of the plaintiff for declaration of right, title and interest cannot mean that the title of the defendant is to be declared until there is a counter-claim. – Accordingly, both the substantial questions of law are decided in favour of the present appellant. – By entering into the records this court finds that the cross-objection is devoid of any merit and as such to that extent the judgment and decree of First Appellate Court is set aside, i.e., the finding to the extent of cross-objection. – Accordingly, this second appeal succeeds so far the substantial questions of law involved are concerned without interfering the rest of the findings of the judgment and decree passed by the learned First Appellate Court. – Cross-objection Dismissed
JUDGMENT :
1. Heard Mr. S.P. Choudhury, learned counsel appearing on behalf of the appellant. Also heard Mr. M.H. Rajbarbhuiyan, the learned counsel appearing for respondents.
2. The appellants before this court are the plaintiffs in Title Suit No. 86 of 2004 in the court of the learned Civil Judge (Jr. Div.) No. 1, Karimganj and the respondents are the defendants in the said Title Suit No. 86/2004.
3. The facts leading to filing the said Title Suit No. 86/2004 are that the landed property described in Schedule of the plaint is covered by Mohal Elam Patta No. 465/02 and Dag No. 115, under Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat in the District of Karimganj. Idris Ali, Ambar Ali and Yakub Ali are the patta holders enjoying the land described in the Schedule of the plaint and same was possessed exclusively till the date. On the death of Idris Ali, Ambar Ali and Yakub Ali their legal heirs Moinuddin, Jalal Uddin and Nasir Uddin inherited the same and enjoyed the possession of the said land. Later on, Moin Uddin, Jalal Uddin and Nasir Uddin transferred the said land by way of registered sale deed No. 57 dated 22.1.2002 to the plaintiff-appellants whereafter, they acquired their right, title and interest and possession over the land described in the Schedule of the plaint. The plaintiff-appellants have reared fishes on the northern side of the low lying land within the boundary and planted annual Hali chara on the southern side. The defendant-respondents out of enmity tried to dispossess the plaintiff-appellants from the said land and as such they filed the suit for declaration that they have got the land holder right over the land described in the Schedule of the plaint so purchased by the registered deed No. 57 dated 22.1.2002 and for confirmation of possession along with the declaration that the defendant-respondents have got no right title and interest and possession over the said land and for permanent injunction restraining the defendant-respondents from entering into the suit land.
4. The suit land as revealed from the Schedule of the plaint is described hereinbelow:
“Schedule under PS. Badarpur, Mouza Pahar, Kitte Kuki Tilla, Porgonah Chapghat, Mohal Elam periodic patta No. 465/02 dag No. 115, chara and low lying land measuring 1 kedar, butted and bounded—
On the East — PWD Road,
On the West — Panchayat Rasta and on further West — Tilla land,
On the North — Homestead of Burhanuddin,
On the South — Panchayat Rasta and on further South — Jama Masjid of village Bagligool.”
5. The defendant-respondents filed written statement and denied the contention made in the plaint by the plaintiff-appellants.
It is contended in the written statement that the plaintiff-appellants had wrongfully claimed the land purchased by the defendant-respondents by giving false and concocted boundaries. That the predecessors of vendors of defendant Nos. 1 to 5 on amicable partition with his co-sharers got the Schedule land described in the Schedule of their written statement with other contiguous land situated on the eastern side of the Schedule land which is intervened by the PWD road. The Schedule land described in their written statement and its contiguous eastern boundary intervened by the PWD road is the homestead pond chara land of the predecessor of the vendors of the defendant-respondents. On the death of Abdul Bari, the predecessor of the vendors of defendant-respondent Nos. 1 to 5 inherited the said land and started to live there. One Abdul Jabbar, the brother of said Abdul Bari filed a Title Suit No. 153/2001 claiming the schedule land of their writ ten statement against Abdul Quyum and Mehmoda Begum, the vendor Nos. 1 and 3 of the defendant-respondent Nos. 1 to 5 in the Court of Civil Judge, (Jr. Div.) No.2, Karimganj. The said suit was dismissed vide judgment dated 30.1.2004. Later on, the said vendors (the legal heirs of Abdul Bari) sold the said land described in the Schedule of their written statement in favour of the respondent-defendan
