IMPORTANT POINT
The court ruled that a counter-claim against a co-defendant is not maintainable, and the appellants failed to establish adverse possession over the suit land.

JUDGMENT :

Mridul Kumar Kalita, J.

1. Heard Mr. J. Ahmed, learned counsel for the appellants. Also heard Mr. A. Das, learned counsel for the respondents.

2. This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, by the original appellant, Abdul Hamid (Ghari Mistry), challenging the Judgment and Decree dated 21.12.2013, passed in Title Appeal No. 05/2011 by the learned Civil Judge, Jorhat. By the said judgment, the appeal preferred by the appellants was dismissed, and the Judgment and Decree dated 28.02.2011, passed by the learned Munsiff No. 2, Jorhat, in Title Suit No. 15/2007, was upheld.

3. It is pertinent to mention that during the pendency of this second appeal, the appellant, Abdul Hamid, passed away. By order dated 24.02.2023, the legal heirs of the appellant, namely, 1. Abdul Matin, 2. Abdul Waheb, 3. Abdul Rauf, 4. Abdul Rafik, 5. Rumena Begum, 6. Rukia Begum, and 7. Ruli Begum, were substituted in his place.

4. The facts relevant for consideration of the instant second appeal, in brief, are as follows:

(i) That the respondent No. 1 in this appeal, namely, Ram Nagina Gupta, had filed a Title Suit (TS-58/1987 which was renumbered as T.S.-177 /1994 and thereafter as T.S.- 15 /2007) for declaration of his right, title and interest and for cancellation of sale deed and for recovery of khas possession of the suit land measuring 01 Katha, 04 Lechas of land covered by Periodic Patta No.268, Dag No. 3617 of Block No. 1, Jorhat Town, which has been fully described in the schedule A to the plaint filed by the plaintiff. The claim of the plaintiff before the Trial Court was that the defendant No. 6, namely, Biren Khound, had sold the suit land to the respondents/plaintiff on 30.11.1978 by executing a registered sale deed No. 9295 dated 30.11.1978. It was also averred in the plaint that the defendant No. 1, namely, Abdul Hamid @ Ghari Mistry (the original appellant in this case) was in wrongful possession of the suit land at the time when the sale deed was executed and hence, the plaintiff could not take over the possession of the suit land after execution of the sale deed. The defendant Nos. 1 and 2 in the said suit, namely, Abdul Hamid and Alauddin Hakim (Kabiraj) filed a joint written statement wherein, they took a plea of adverse position by stating that they were in possession of the suit land since a long time. It was also stated in the written statement that defendant No. 2 came to occupy a part of the suit land as allowed by the defendant No. 1. On the basis of the pleadings of the parties, the Trial Court framed following issues: -

i. Whether the plaintiff has any cause of action for the suit?

ii. Whether the suit is barred by limitation?

iii. Whether the suit is hit by the principles of estoppel and/or waiver?

iv. Whether the suit land is also subject matter of Title Suit No. 66/1994?

v. Whether the suit is maintainable in law in view of the counter-claim taken by the plaintiff in Title Suit No. 66/1994?

vi. Whether the proforma defendant No. 6 was the absolute owner of the suit land and whether he had the right to sell the suit land to the plaintiff?

vii. Whether the defendant No. 1 acquired the title by adverse possession?

viii. Whether the plaintiff is entitled to reliefs as prayed for?

ix. To what reliefs the parties are entitled to?

5. It is pertinent to mention herein that the Title Suit No. 177/1994, was transferred by the learned District Judge, Jorhat to the Court of learned Munsiff No. 2, Jorhat and on its transfer, the suit was re-numbered as Title Suit No. 15/2007. Thereafter, by Judgment dated 16.07.2007, the learned Munsiff No. 2 decreed the suit. The predecessor-in-interest of the present appellants filed an appeal against the said Judgment before the Court of learned Assistant District Judge, which was registered as Title Appeal No. 18/2007. The Appellate Court remanded the suit back to the Trial Court for fresh disposal after framing two additional issues. The two additional