Legal heirs of a deceased tenant must be included in execution proceedings; failure to prove relationship or rights results in dismissal of appeal.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. RK Bhuyan, the learned counsel appearing on behalf of the appellant. Mr. L Mohan, the learned counsel appears on behalf of the respondents.

2. This is an appeal filed challenging the judgment and decree dated 07.10.2023 passed in Title Appeal No. 14/2019 passed by the learned Civil Judge (Senior Division), Morigaon (hereinafter to be referred to as, “the learned First Appellate Court”) whereby the judgment and decree dated 05.08.2019 passed by the Court of the learned Civil Judge (Jr. Division) No.1, Morigaon (hereinafter to be referred to as, “the learned Trial Court”) in Misc (J) Case No.7/2016 arising out of Title Execution Case No.16/2015 was confirmed.

3. The instant appeal is being taken up at the stage of Order XLI, Rule 11 of the Code of Civil Procedure, 1908 (for short, the Code) to ascertain as to whether in the instant appeal there are substantial questions of law which can be formulated in terms of Section 100 (4) of the Code. For ascertaining the said aspect, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

4. One Kanak Chandra Sarma, who has been arrayed as the respondent No.7 in the instant appeal had filed a suit against the defendants which was registered and numbered as Title Suit No. 52/2010 before the Court of the learned Munsiff No.1, Morigaon. In the said suit, the said Kanak Chandra Sarma sought for a decree declaring his right title and interest over the suit land described in Schedule B to the plaint and for confirmation of possession; a decree declaring that the sale deed No.291 dated 02.02.2010 is null and void and liable to be cancelled; a permanent injunction restraining the principal defendants, their agents, servants, etc from entering into the suit land; for a decree declaring that the Chitha mutation order dated 04.02.2010 passed by the Circle Officer is liable to be cancelled etc.

5. It is relevant to mention that the suit land is a Schedule B land in the plaint which ad measures 4 kathas covered by Dag No. 659 of periodic patta No.322 of village Silpukhuri, Kissam under Mouza Silpukhuri in the district of Morigaon, Assam.

6. The principal defendants filed their written statement–cum counter claim. In the said written statement the case of the plaintiff was denied. In addition to that, the principal defendants supported the deed of sale bearing deed No.291 dated 02.02.2010. On the basis thereof, the principal defendants filed a counter claim seeking the reliefs for declaring that the principal defendant No.1 has right, title and interest over the Schedule X land. It is relevant to take note of that the Schedule X land is the Schedule B land to the plaint. In addition to that the counter-claimant also sought for a decree for recovery of khas possession over the Schedule X land and for a decree of permanent injunction. It is notable to take note of that in the said suit, the proforma defendants were Md. Siraj Ali and Md. Miraj Ali, who were arrayed as sons of Late Ketu Bepari. This aspect of the matter is relevant which would be seen at the later stages of the instant judgment.

7. Against the counter-claim, the plaintiffs filed their written statement.

8. On the basis of the said pleadings, as many as 10(ten) issues were framed by the learned Trial Court. On behalf of the plaintiffs in the said suit, 3(three) witnesses were examined and on behalf of the defendant, 4(four) witnesses were examined. The learned Trial Court by the judgment and decree dated 28.11.2014 dismissed the suit and decreed the said counter-claim in favour of the principal defendants. No appeal their against was filed and as such the said judgment and decree dated 28.11.2014 passed in Title Suit No.52/2010 attained finality.

9. Subsequent thereto, the appellants herein filed an application under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure, 1908, resisting the execution of the said decree. It is relevant to t