Dismissed

Lila Sinha and 2 Ors. v. Chandreswar Misra and 32 Ors.

Gauhati HC24 Feb 2020CRP/17/2020

Case brief

AI extract

What is this about?

In a revision under Article 227, the High Court upheld the appellate court's order setting aside a trial court's status-quo injunction. The Court found that Section 11 of the CPC applied as the current petitioners derived their title from the same source as the plaintiffs in a prior dismissed suit, making the earlier title dispute res judicata.

What did the court decide?

The revision against the order dated 04.12.2019 is dismissed without issuance of notice.

Lila Sinha and 2 Ors. Vs Chandreswar Misra… — Civil Procedure and Limitation | Gauhati HC (2020)

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Page No.# 1/9

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GAHC010008822020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 17/2020

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1:LILA SINHA AND 2 ORS.

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D/O- LT. NILMONI SINHA, W/O- BUDEB SINHA, R/O- VILL. KALINAGAR PTI, P.O. AND P.S. KATAKHA, DIST.- HAILAKANDI, ASSAM, PIN- 788801.

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2: LILI SINHA D/O- LT. NILMONI SINHA W/O- DIREN SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ ASSAM PIN- 788724.

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3: BINA SINHA D/O- LT. NILMONI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ ASSAM PIN- 788724

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VERSUS

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1:CHANDRESWAR MISRA AND 32 ORS. S/O- LT. ISWAR MISRA, R/O- VILL. RAJARGAON, PARGAONAPRATAPGARH, P.S. PATHARKANDI, DIST.- KARIMGANJ.

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2:GOPALDHAN SINHA S/O- LT. CHANDRESWAR SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ.

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3:BINODINI SINHA W/O- LT. FULESWAR SINHA R/O- VILL. NALUGAON P.O./ P.S. PATHARKANDI DIST. KARIMGANJ. PRESENTLY RESIDING AT VILL. PECHARGHAT LAKHIMAMILA P.O. HATIKHIRA P.S. BAZARICHARRA DIST. KARIMGANJ PIN- 788724.

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4:ARATI SINHA

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D/O- LT. FULESWAR SINHA R/O- VILL. NALUGAON P.O./ P.S. PATHARKANDI DIST. KARIMGANJ. PRESENTLY RESIDING AT VILL. PECHARGHAT LAKHIMAMILA P.O. HATIKHIRA P.S. BAZARICHARRA DIST. KARIMGANJ PIN- 788724.

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5:SRIDAM SINHA S/O- LT. NILMONI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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6:RAM SINHA S/O- LT. NILMONI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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7:NISHIKANTA SINHA S/O- LT. NILMONI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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8:SINGAREI DEVI W/O- LT. NILMONI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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9:KUNJA RANI SINHA D/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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10:BRINDA RANI SINHA D/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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11:DILIP SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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12:SUBAL SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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13:LAXMAN SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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14:DIPU SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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15:RAJU SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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16:DHANE SINHA S/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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17:KUSHUM LEIMA SINHA W/O- LT. SUNDAR BABU SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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18:SAMAR SINHA S/O- LT. SINGHAJIT SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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19:KAMAL SINHA S/O- LT. SINGHAJIT SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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20:RAJKUMARI SINHA @ MAMONI SINHA D/O- LT. SINGHAJIT SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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21:BHARATI SINHA D/O- LT. SINGHAJIT SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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22:CHABI SENA SINHA D/O- LT. KALAMUNI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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23:NABADWIP SINHA S/O- LT. KALAMUNI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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24:PRATAP SINHA S/O- LT. KALAMUNI SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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25:MONIKA SINHA D/O- LT. BABULAL SINHA @ MONIHAR SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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26:DIPALI SINHA D/O- LT. BABULAL SINHA @ MONIHAR SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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27:SUKUMAR SINHA S/O- LT. BABULAL SINHA @ MONIHAR SINHA R/O- VILL. NALUGAON P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724. 28:THE CIRCLE OFFICER PATHARKANDI P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ ASSAM PIN- 788724.

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29:FAKAR UDDIN LOT AMIN CIRCLE OFFICE PATHARKANDI P.O. AND P.S. PATHARKANDI DIST. KARIMGANJ PIN- 788724.

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30:ABDUL ROUF LOT AMIN CIRCLE OFFICE PATHARKANDI P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ PIN- 788724.

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31:THE DY. COMMISSIONER KARIMGANJ P.O. P.S. AND DIST.- KARIMGANJ PIN- 788710.

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32:THE STATE OF ASSAM

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REP. BY ITS COMM. AND SECY. TO THE GOVT. OF ASSAM (L AND R) DEPTT. DISPUR GHY.-06.

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33:THE SUB-REGISTRAR PATHARKANDI P.O. AND P.S. PATHARKANDI DIST.- KARIMGANJ PIN- 788724

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Advocate for the Petitioner : MR. S A AHMED

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 24-02-2020

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Heard Mr. S.A. Ahmed, learned counsel for the petitioners and Mr. CKS Baruah, learned Govt. Advocate for the proforma respondent Nos. 28,31,32 and 33 herein.

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By this application under Article 227 of the Constitution of India, the petitioners, who are the plaintiffs in T.S. No. 90/2018, have assailed the order dated 04.12.2019, passed by the learned Civil Judge, Karimganj in Misc. Appeal No. 06/2019 thereby allowing appeal against the order dated 06.12.2018, passed by the learned Munsiff No. 1, Karimganj in Misc Case No. 147/2018 in T.S. No. 90/2018. The said Misc. Case No. 147/2018 was registered on the basis of the injunction application under Order XXXIX Rule 1 and 2 read with Section 151 of the of the Code of Civil Procedure, 1908.

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The learned Munsiff No. 1, Karimganj by order dated 06.12.2018 disposed of the said Misc. Case No. 147/2018 by directing the parties to maintain status-quo in respect of the suit land till disposal of the main suit. The respondent No. 1 herein, aggrieved by the said order had preferred an

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appeal which was registered as Misc. Appeal No. 6/2019. After hearing the learned counsel appearing for the parties, the learned appellate court i.e. the learned Civil Judge, Karimganj by the impugned judgment and order dated 04.12.2019 framed three following points of determination:-

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(i) Whether there is prima-facie case in favour of the appellant/plaintiff?

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(ii) Whether balance of convenience is in favour of the appellant/plaintiff?

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(iii) Whether the impugned order passed by the learned lower court, required any interferfence?

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In respect of Point Nos. 1 and 2, it was held that the sons and wife of late Nilmoni Sinha had instituted T.S. No. 117/2010, challenging the two sale deeds, which are impugned in the present suit, but the said suit was dismissed and the appeal was also dismissed and accordingly, it was held that the subject matter of the previous suit was same as the present suit and though the plaintiffs in T.S. No. 117/2010 were different from the present suit, but all of them were derived their right from the same source of title and accordingly, it was held that the case came under the umbrella of constructive res-judicata as provided under Explanation-IV of Section 11. Accordingly, in respect of the point No. 3, the learned lower appellate court was of the opinion that the order of status-quo passed by the leaned trial court was not proper and therefore the appeal was allowed and the order of injunction passed by the learned trial court was set aside.

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Assailing the said order in the revision, the learned counsel for the petitioners has submitted that the plaintiffs of both the suit were different and it also submitted that in the previous suit, the present petitioners were not made parties. Therefore, it is submitted that the petitioners, being the daughters of late Nilmoni Sinha had interest in the suit land. It is also submitted that the provisions of Section 11 of the Code of Civil Procedure, 1908 was not attracted and therefore, the impugned order was liable to be set aside and quashed.

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Per contra, the learned Govt. Advocate submitted that the suit land is covered by the provision of Assam (Temporary Settled Areas) Tenancy Act, 1971 and that by filing their written statement, the stand of the Govt. in the suit is that the petitioners are not the recorded owners of the suit land.

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Hence, he submits that if the petitioners have any semblance of right, that can be derived by them only througth the recorded owners of the land and he has submitted that the impugned order need not be interfered with.

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It is seen that under the provisions of Section 11 of the of the Code of Civil Procedure, 1908, it is provided that ………”No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title……….”

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Accordingly it is found that the plaintiffs in the previously instituted T.S. No. 117/2010 were the brothers and mother of the present petitioners who had derived their title from late Nilmoni Sinha, who in turn was entitled to some share of land from Late Gandha Sinha. Accordingly, the petitioners herein also appears to claiming title through their father late Nilmoni Sinha and share of late Gandha Sinha. Therefore, the provisions of Section 11 CPC is squarely found to be attracted in the present case in hand and therefore, the order impugned herein cannot be faulted with and the impugned order is not vitiated by perversity or any jurisdictional error. Therefore, the revision against the order impugned herein fails and the same is dismissed.

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Before parting with the record, it is clarified that this order and the impugned order shall not prejudice the petitioners in the proceeding of T.S. No. 90/2018.

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Let a copy of this order be furnished to the learned Govt. Advocate, Assam so as to enable him to transmit the same to the Government Advocate, Karimganj. The Registry shall also communicate this order to the learned Civil Judge, Karimganj to be kept on record.

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The revision is dismissed without issuance of notice on the respondents.

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JUDGE

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Comparing Assistant

Lila Sinha and 2 Ors. v. Chandreswar Misra and 32 Ors.

Case brief

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Lila Sinha and 2 Ors. v. Chandreswar Misra and 32 Ors.

Case brief

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