Dismissed

Anowar Hussain v. Nur Hussain and 2 Ors.

Gauhati HC11 Feb 2020CRP(I/O)/23/2019

Case brief

AI extract

What is this about?

In a revision under Article 227, the Gauhati High Court dealt with an order rejecting a petitioner's application to exclude a counter-claim. The Court held that since the prerequisites for declarations existed within the suit, the trial court did not commit an infirmity in considering the counter-claim despite the stage of settlement of issues.

What did the court decide?

The revision petition was dismissed without expressing any opinion on the merits of the suit or the counter-claim.

Anowar Hussain Vs Nur Hussain and 2 Ors. — Property and Title | Gauhati HC (2020)

¶1

Page No.# 1/4

¶2

GAHC010011862019

¶3

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

¶4

Case No. : CRP(I/O) 23/2019

¶5

1:ANOWAR HUSSAIN

¶6

S/O- LATE MUNNAF ALI, VILL- SONTOSHPUR PART-III, P.O- SONTOSHPUR, P.S- ABHAYAPURI, DIST- BONGAIGAON, ASSAM

¶7

VERSUS

¶8

1:NUR HUSSAIN AND 2 ORS

¶9

VILL- SONTOSHPUR PART-III, P.O- SONTOSHPUR, P.S- ABHAYAPURI, DISTBONGAIGAON, ASSAM, PIN- 783384

¶10

2:JOINAL ABDIN S/O- HANIF ALI VILL- GHORAMARA PART-I P.O- RANGAPANI DIST- BONGAIGAON ASSAM PIN- 783384

¶11

3:PIAR ALI MASTER S/O- HAZRAT ALI VILL- SONTOSHPUR PART-III P.O- SONTOSHPUR P.S- ABHAYAPURI DIST- BONGAIGAON ASSAM PIN- 78338

¶12

Advocate for the Petitioner : MS. R CHOUDHURY

¶13

Advocate for the Respondent : MR. M DUTTA (R1-R3)

¶14

Page No.# 2/4

¶15

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

¶16

ORDER

¶17

Date : 11.02.2020

¶18

Heard Mrs. R. Choudhury, learned counsel for the petitioner as well as Mr. M. Dutta, learned counsel appearing for the respondents.

¶19

This application under section 227 of the Constitution of India is filed to challenge the order dated 09.11.2018 passed by the learned Civil Judge, Bongaigaon in T.S. 66/2016, thereby rejecting the petition of the petitioner- plaintiff under Order VIII Rule 6C CPC.

¶20

Bereft of unnecessary details, the case projected in the plaint is that the petitioner- plaintiff is an agriculturist. In the year 1979, the petitioner entered into adhi cultivation of the land of one Nripen Ghosh, and since then he is enjoying continuous possession of the schedule ‘A’ land. However, it is pleaded that from a period from 1981 to 1997, the schedule ‘A’ land was under river bed of Manash and Aie due to the river erosion. It is claimed that after the land became visible, the petitioner along with his brother started cultivation on the land. The petitioner claims that the land has been in continuous, uninterrupted, open and exclusive possession of the petitioner. Alleging collusion by the respondent Nos. 1, 2 and 3, it is claimed that the petitioner was dispossessed from a part of schedule ‘A’ land which is described in schedule ‘B’ land of the plaint. In paragraph 9 of the plaint, it is projected that on 29.11.2016, the respondent No.2 along with other defendants came in a gang to break down the shops of proforma defendants from schedule ‘A’ land and made continuous process to dispossess the petitioner from the schedule land and threatening the petitioner to vacate the land and accordingly, on the basis of said cause of action, a suit was filed under section 6 of the Specific Relief Act. The entire case projected in the plaint is not reproduced herein to maintain the brevity.

¶21

The respondent Nos. 1, 2 and 3 who are the defendant Nos. 1, 2 and 3 in the suit had filed their written statement and referring to the manner in which they derive title and legal ownership, by denying the statements in the plaint, they preferred a counter-

¶22

Page No.# 3/4

¶23

claim as regards right, title and interest of the respondent No.2 over the schedule ‘A’ land and for recovery of khas possession of schedule ‘A’ land and other relief. The petitioner had filed a written statement against the counter-claim and also filed a separate application under Order VIII Rule 6C CPC read with section 161 CPC to exclude the counter-claim on the ground that the respondents had prayed for declaration of right, title and interest over the schedule ‘A’ land. The said prayer was rejected by the learned trial Court by the impugned order dated 09.11.2018. Being aggrieved, the petitioner has filed this revision.

¶24

The learned trial Court, by referring to the provisions of Rule 6C of Order VIII CPC, arrived at a finding that the said provision could be used for passing an order “at any time” before issues are settled in relation to the counter-claim. It appears that as the said stage is over, the learned trial Court was of the view that petition under Order VIII Rule 6C CPC cannot be entertained at that stage.

¶25

The learned counsel for the petitioner submits that there are several case laws on the point that in a suit filed under section 6 of the Specific Relief Act, the trial Court cannot declare title or right of parties and that the Court should only restrict itself to decide the issue whether the party complaining was dispossessed from the suit land within a period of 6 (six) months from the date of filing of the suit. In this regard, she places reliance in the cases of (i) Ramesh Chand Ardawatiya vs Anil Panjwani, (2003) 7 SCC 350, (ii) Ravinder Chaudhary vs Kishan Kumar Pauchauri & Ors., 2018 0 Supreme(Del) 1546, (iii) Sopan Sukdeo Sable & Ors. vs Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, and (iv) Nair Service Society Ltd. vs. Rev Father K.C. Alexander & Ors., (1968) 3 SCR 163: AIR 1968 SC 1165. Accordingly, it is submitted that as the respondents Nos. 1, 2 and 3 had prayed for declaratory relief in respect of schedule ‘A’ land, such counter-claim is required to be separately adjudicated as a separate suit.

¶26

The learned counsel for the respondents has referred to the statements made in the pliant and it is submitted that the relief claimed in the plaint by the petitioner contains prayer for declaration to the effect that the petitioner had exclusive and continuous possession of schedule ‘A’ land and that the respondents herein had never been in possession of the schedule ‘A’ land at any time. Accordingly, it is submitted that as the petitioner had

¶27

Page No.# 4/4

¶28

claimed declaratory relief, the respondents had to file the counter-claim to assert their own right and to claim declaratory relief. In this connection, he places reliance on the following cases: (i) ITC Ltd. vs Adarsh Cooperative Housing Society Ltd., (2013) 10 SCC 169, and (ii) Ravinder Chaudhary vs Kishan Kumar Pauchauri & Ors., 2018 0 Supreme(Del) 1546.

¶29

Having seen the structure of the suit, this Court is of the considered opinion that as the petitioner herein has made a prayer for declaration, the Court is inclined to accept the submissions made by the learned counsel for the respondents that in order to protect their interest, they had filed a counter-claim. It further appears that the learned counsel for both sides are ad-idem on the point that a Court trying a suit under section 6 of the Specific Relief Act cannot grant a declaratory relief in such suit, as such, the cases cited by the learned counsel for the parties are not required to be discussed.

¶30

Accordingly, this Court is of the further considered opinion that so long as the prayer for declaration is kept alive in the present suit, there would be no infirmity in the impugned order so as to consider the counter-claim of the respondents in the same suit.

¶31

Accordingly, this revision stand dismissed without expressing any opinion as to the merit of the suit or the counter-claim.

¶32

JUDGE

¶33

Comparing Assistant

Anowar Hussain v. Nur Hussain and 2 Ors.

Case brief

What is this about?

What did the court decide?

Anowar Hussain v. Nur Hussain and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ethnan Marak Vs the State of Assam and Anr.

Ajrudeen Vs the State of Assam

Oriental Insurance Co. Ltd. Vs Smti Jonaki Deka and Others

Boby Sahu @ Sanjib Vs Tara Devi

Sri Manzoor Alam Vs Smti Ila Pathak and 3 Ors.

Boby Sahu @ Sanjib Vs Tara Devi