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2025 Supreme(Gau) 917
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
Taizuddin S/o. Lt. Suburuddin – Petitioner
Versus
Saiful Islam S/o. Lt. Kabir Molla and Ors. – Respondent
RSA/80/2025
Decided On : 02-06-2025
Advocate Appeared:
For the Appellant :Mr. S. Das, Advocate
For the Respondent:Mr. N. Hoque, Advocate
The court affirmed that rights must be specified in decrees for land entitlements, necessitating modifications in circumstances of non-possession.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100(4) - Appeal concerning land rights - Concurrent findings established plaintiffs entitled to 2 Kathas of land; the trial court's modification required as plaintiffs not in possession of Schedule B (1) land - Order for partition issued, directing Deputy Commissioner to create separate records. (Paras 2, 4, 5)
(B) Modification requirement - Courts to ensure decrees specify rights without possession to avoid ineffective judgments. (Paras 4, 5)
Facts of the case:
The appeal arises from a decree affirming plaintiffs' rights over 2 Kathas of land within the Schedule B land, with questions of possession and partition at issue.
Findings of Court:
The substantial question of law was determined to necessitate modification of the prior decree to specify the plaintiffs' entitlement to partition 2 Kathas of land.
Issues: Whether the courts were justified in declaring rights over land without possession.
Ratio Decidendi: The court found justification for modifying decrees to specify plaintiffs' rights over partitioned land while noting that the courts below had correctly established the facts.
Result: Appeal stands disposed of with directives for partition.
| Table of Content |
|---|
| 1. petitioner's identity and case background (Para 1) |
| 2. formulation of substantial question of law (Para 2 , 3) |
| 3. modification of decree required based on findings (Para 4) |
| 4. details of court's ruling and orders (Para 5) |
| 5. conclusion of appeal disposition (Para 6) |
JUDGMENT :
Devashis Baruah, J.
Heard Mr. S. Das, the learned counsel appearing on behalf of the appellant. Mr. N. Hoque, the learned counsel appears on behalf of the respondent Nos.1 & 2.
2. This Court vide an order dated 26.05.2025 had admitted the instant Appeal by formulating a substantial question of law which reads as under:-
Whether the learned Courts below were justified after coming to a satisfaction that the plaintiffs were entitled to 2 Kathas of land out of the Schedule A land to declare specifically the right, title and interest over the Schedule B (1) land without effecting partition that too when admittedly, the plaintiffs were not in possession of the Schedule B (1) land?
3. The question which arises in the instant Appeal as to whether the substantial question of law which has been formulated by this Court under Section 100(4) of the Code of Civil Procedure, 1908 (for short, ‘the Code’) is involved in the instant Appeal.
4. This Court has duly heard the learned counsel appearing on behalf of the appellant as well as the learned counsel appearing on behalf of the respondent Nos.1 & 2. The substantial question of law so formulated is only on the aspect as to whether there is a requirement of a modification of the decree passed by the learned Trial Court which has been upheld by the learned First Appellate Court only to the extent of specifying the entitlement of the plaintiffs in respect to Schedule-B(1) which is specified with boundaries. Taking into account that the concurrent findings of facts so arrived at by the learned Courts below is that the plaintiffs have right, title and interest over 2 kathas of land which is a part of the Schedule-B land and the plaintiffs are also not in possession of the Schedule-B(1) land, it is the opinion of this Court that there is a requirement of modification of the decree so passed by the learned Trial Court dated 25.11.2019 in Title Suit No.81/2016 which has been affirmed by the judgment and decree dated 05.10.2024 in Title Appeal No.5/2021. The modification which is required is that the plaintiffs have right, title and interest over 2 kathas of land which is included in Schedule-B to the plaint.
5. Accordingly, this Court therefore is of the opinion that the substantial question of law is duly involved in the instant Appeal, and accordingly, the impugned judgment and decree so passed by the learned Trial Court dated 25.11.2019 in Title Suit No.81/2016 and affirmed by the learned First Appellate Court vide the judgment and decree dated 05.10.2024 passed in Title Appeal No.5/2021 stands modified as herein under:-
(i) The plaintiffs have right, title and interest over 2 kathas of land which is a part of the Schedule-B land.
(ii) The plaintiffs are entitled to partition the said 2 kathas of land which is a part of the Schedule-B land by creation of a separate Dag and Patta Number in their names.
(iii) Accordingly, this Court issues precept to the Deputy Commissioner, Barpeta to partition the Schedule-B land and thereby creating a separate Dag and Patta Number in the names of the plaintiffs of an area admeasuring 2 kathas.
(iv) Upon making the partition, the Deputy Commissioner, Barpeta or any officer so authorized to carry out the partition shall submit a report in terms with Section 54 of the Code to the learned Trial Court, i.e. the Court of the learned Munsiff No.1, Barpeta. On the basis of the said report, the learned Trial Court, i.e. the Court of the learned Munsiff No.1, Barpeta shall pass the final decree as regards separate possession and recovery thereof in favour of the plaintiffs.
(v) The learned Trial Court shall further pass any further relief or reliefs as deem fit as has been prayed in the suit.
(vi)
