The failure to determine respective shares of co-owners in a partition suit constitutes a procedural error, necessitating remittance to the lower court for resolution.

ORDER :

DEVASHIS BARUAH, J.

Heard Mr. J. Laskar, the learned counsel appearing on behalf of the appellant and Mr. M. J. Quadir, the learned counsel who appears on behalf of the respondents.

2. The instant Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree passed by the learned Court of the Civil Judge, Hailakandi (hereinafter referred to as ‘the learned First Appellate Court’) dated 24.02.2016 whereby the Title Appeal No.11/2015 was dismissed and the judgment and decree passed by the learned Court of the Munsiff No.2, Hailakandi (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.87/2010 dated 17.07.2015 was affirmed.

3. It is seen that the learned Coordinate Bench of this Court vide the order dated 13.05.2016 had admitted the instant Appeal by formulating two substantial questions of law which being relevant is reproduced herein under:-

1. Whether the suit of the plaintiff is maintainable in view of bar under Section 154 of the Assam Land and Revenue Regulation Act, 1886 in view of absence of the prayer of declaration of title?

2. Whether the impugned judgments and decrees are vitiated for non-compliance of the provision of Order XX Rule 18 of the Code of Civil Procedure?

4. The question therefore arises as to whether the two substantial questions of law arise in the instant Appeal. In so far as the first substantial question of law, it pertains to as to whether the suit of the plaintiff was maintainable in view of the bar contained under section 154 of the Assam Land and Revenue Regulation, 1886 in view of the absence of the prayer of declaration of title, in the opinion of this Court, does not arise at all taking into account that the plaintiff who is the respondent No.1 in the instant Appeal had sought for the relief for declaration of his title in respect to his share of the suit land as would be apparent from Clause (d) of the reliefs so sought for in the plaint. Therefore, the first substantial question of law cannot be said to be involved in the instant Appeal.

5. The second substantial question of law relates to as to whether the judgments passed by the learned Trial Court as well as the learned First Appellate Court stands vitiated for non-compliance with the provision of Order XX Rule 18 of the Code.

6. For the purpose of ascertaining the same, it is relevant to take note of the brief facts which led to the filing of the instant Appeal.

7. For the purpose of convenience, the parties herein are referred to in the same status as they were before the learned Trial Court.

8. The respondent No.1 herein as plaintiff had instituted the suit being Title Suit No.87/2010 before the learned Trial Court seeking a decree for imperfect partition in respect to the land of the plaintiff’s share; a precept be issued to the Collector on the basis of the preliminary decree and thereupon to pass a final decree. The plaintiff also sought for a decree for handing over the possession of his share by the Amin Commission. Apart from that, the plaintiff sought for a decree for declaration of his title in respect to his share of the suit land.

9. The case of the plaintiff in short is that one Taiyab Ali Laskar who was the father of the plaintiff as well as the predecessor-in- interest of the principal defendant No.1 to 5 and the proforma defendant N