Babulal Chhajer Vs on the Death of Abdul Hai His Legal Heirs Gulanbandi and 5 Ors.

ON THE DEATH OF ABDUL HAI HIS LEGAL HEIRS GULANBANDI AND 5 ORS. 2:GULANBANBI S/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121 3:SANOWAR ALAM S/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121 4:DILDAR ALAM S/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121 5:JAKIRUL HOQUE

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S/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121 6:RUBI KHATUN D/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121 7:JASMINA KHATUN D/O LATE ABDUL HAI R/O BALADMARI CHAHBAGAN (BEHIND GOALPARA OIL SERVICE) GOALPARA TOWN P.O.-BALADMARI P.S. AND DIST-GOALPARA (ASSAM) PIN-783121

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BEFORE

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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Advocate for the petitioner(s) : Mr A C Sarma, Mr G Bharadwaj. Advocate for the respondent(s) : Mr P Bhowmick Date of Hearing and Judgment : 19.05.2025

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JUDGMENT AND ORDER (ORAL)

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Heard Mr A C Sarma, the learned Senior Counsel appearing on behalf of the petitioner, assisted by Mr G Bharadwaj and Mr P Bhowmick, the learned counsel appearing on behalf of the respondents.

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The revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”), has been invoked to challenge the order dated

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20.08.2022, passed by the learned Court of the Munsiff No. 2, Goalpara (‘the learned Executing Court’), in Misc (Ex) No. 38 of 2018, whereby an application under Section 47 of the Code, filed by the respondents herein, was allowed, holding, inter alia, that the execution proceedings could not be maintained, inasmuch, as the Judgment and Decree dated 29.11.2001, in Title Suit No. 45 of 1973, was passed against the defendant, who was already dead on 25.06.2000.

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This Court has duly taken note of the submission made by Mr A C Sarma, the learned Senior Counsel to the effect that, although the defendant Md Abdul Hai had expired on 25.06.2000, but then also his estate was duly represented by his wife, who was the defendant No. 1 (i), and as such, the impugned order requires to be interfered with. In that regard, the learned Senior Counsel referred to the Judgment of the Supreme Court in the case of Shiv Shankara & Another –Vs- H P Vedavyasa Char; reported in (2023) 13 SCC 1 , wherein the Supreme Court observed that non-substitution of the legal representatives, on the death of one or several defendants would not lead to abatement of the suit, if the estate/interest was fully or substantially represented jointly by other defendants. He submitted that the Defendant No. 1 (i) was the wife of Late Abdul Hai and she represented the estate of Late Abdul Hai upon his death. This aspect was not taken into consideration by the learned Executing Court. The learned Senior Counsel further submitted that the counsel, who was representing the Defendants in the suit though appeared but did not inform the Learned Trial Court as regards the death of the Defendant No. 1.

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Mr P Bhowmick, the learned counsel appearing on behalf of the respondents, submitted that a perusal of the application so filed, which is enclosed as Annexure-5 to the instant application, would show that the defendant No. 1, Abdul Hai, not only had his wife, but 6 (six) other legal representatives. The learned counsel submitted that the Supreme Court in the case of Vijay A. Mittal –Vs- Kulwant Rai , reported in (2019) 3 SCC 520, as well as the subsequent judgment, observed that substitution of all the legal

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heirs of the deceased defendant is not required, when out of all the legal representatives, or majority of them are already there on record. He, therefore, submitted that in the instant case, merely because, the wife of the defendant No. 1 was impleaded as the defendant No. 1 (i), but as majority of the legal representatives were not there on record, the decree so passed, in so far, as the defendant No. 1 or his legal representatives, cannot be proceeded with.

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This Court has duly considered the submissions made by the learned counsel appearing on behalf of the parties and have also perused the materials on record. The records of Title Suit No. 45/1978 have also been perused.

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A perusal of the records of Title Suit No. 45/1973 would show that the Petitioner herein, filed the suit initially against Md Abdul Hai, who was the sole principal defendant and one Md Islam Sheikh, who was the proforma Defendant. The said suit was filed seeking, inter alia, a decree for declaration of the title of the plaintiff over the schedule land and for recovery of possession. It is relevant to take note of that the suit land admittedly, prior to the filing of the suit was purchased by the Defendant No. 1 (i) (the wife of Late Abdul Hai) vide a registered Deed of Sale, bearing Deed No. 5081/4387, dated 12.12.1968. Under such circumstances, when this aspect came to the knowledge of the plaintiff, an application was filed to implead the wife of the defendant No. 1, to the said suit. The said impleadment was allowed on 08.12.1983, and the wife of Late Abdul Hai was arrayed as the Defendant No. 1 (i) to the said suit. It is also relevant to observe that the Defendant No. 1 (i) filed a separate written statement on 06.03.1984, claiming right over the suit land, on the basis of the Deed of Sale, bearing No. 5081/4387 dated 12.12.1968 and sought for dismissing the suit against her on the ground of limitation. A preliminary objection was raised in that regard, but the said objection on the maintainability of the suit was rejected, vide an order dated 06.07.1984.

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It is seen from the records of Title Suit No. 45/1973 that, initially, the suit was

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decreed by the learned trial Court, i.e., the learned Court of the Munsifff at Goalpara. The defendants in the said suit being aggrieved preferred an appeal being Title Appeal No. 85/1986 before the Court of learned District Judge, Goalpara. The learned Court of the District Judge, Goalpara, vide an order dated 20.08.1988, had remanded the suit back to the learned Court of the Civil Judge (Junior Division) No. 2, Goalpara (the nomenclature of the Learned Trial Court changed), and directed for disposal of the suit after carrying out survey of the suit land.

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Being aggrieved with the order of remand, the plaintiff filed an appeal before this Court, which was registered and numbered as SA No. 37 of 1989. This Court, vide an order dated 06.01.1997, dismissed the appeal and thereby, directed the learned trial Court to proceed with the suit, by carrying out the survey of the suit land.

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The records of Title Suit No. 45/1978 upon being perused, post the order passed by this Court in the Second Appeal No. 37/1989, would show that the Learned Trial Court after receipt of the survey report decreed the suit in favour of the plaintiff/petitioner, vide a judgment and decree dated 27.11.2001. The discussion on Issue Nos. 7, 8 and 9 of the Learned Trial Court is relevant and the same are reproduced hereinbelow:-

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“ Issue Nos. 7, 8 and 9:

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From the evidence on record, it is seen that the S/L is different from the defendant land whom they purchased vide Ext. Ka from Ashlam Sheikh on 12.12.68. The sale deed Ext-Ka and Ext-I speaks that the land belongs to same khatian no. and Dag No. but the boundaries of the land are different. It is also clear that the defendants actually dispossessed the plaintiff from the suit land by trespassing and erecting two thatched house over it. As the plaintiff has acquired a valid title over the land by the right of purchase, hence, the plaintiff is entitled to get the relief as prayed under the land and equity. Accordingly, their issues have been decided in favour of the plaintiff.”

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The above quoted portion of the Learned Trial Court Judgment, shows that the claim of the Defendant Nos. 1 and 1 (i) over the possession of the suit land was on the basis of the Deed of Sale dated 12.12.1968, which was in the name of the Defendant No. 1 (i), and the same was rejected by making specific observation that the land of the plaintiff is different from the land as described in the Sale Deed dated 12.12.1968, which at the cost of repetition was in favour of the Defendant No. 1 (i).

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In the backdrop of the above, let this Court take into consideration whether the Learned Executing Court failed to exercise its jurisdiction conferred upon it by law as well as whether the Learned Executing Court exercised the jurisdiction in dismissing the Execution proceedings illegally and with material irregularity.

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The materials on record show that the Defendant No. 1 expired on 25.06.2000, whereas the Defendant No. 1 (i) expired after the judgment and decree dated 29.11.2001. The learned Executing Court held that the judgment and decree dated 29.11.2001 was a nullity as it was passed when the Defendant No. 1 had expired and as such, vide the impugned order dated 20.08.2022, dismissed the Execution proceedings. At this stage, it is relevant to observe that the judgments of the Supreme Court in Vijay A. Mittal (supra), as well as Shiv Shankara (supra), categorically held that a suit does not abate if the one or several defendants expire and their estate is adequately represented. Paragraph Nos. 56 to 60 of the Judgment in the case of Shiv Shankara (supra), is reproduced hereinbelow:-

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“ 56. As noticed earlier, the appellants have also contended that the suit ought to have been held as abated against all the defendants owing to non- substitution of all the legal representatives of the deceased defendant No. 3 upon his death. This contention is bereft of any basis and merits and was rightly repelled by the courts below. In that regard it is to be noted that the first appellant and deceased second appellant as also their father Hanumaiah were all arrayed in the suit as defendants and they

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were jointly defending the suit. Upon the death of original third defendant viz., Hanumaiah the original defendants No.1 and 2, who are sons of the original defendant No.3 fully and substantially representing the joint interest contested the suit and, thereafter, after suffering an adverse judgment and decree in the suit diligently preferred the appeal before the High Court which ultimately culminated in the impugned judgment and decree. Even thereafter, obviously they are diligently prosecuting the joint interest, even if the contention of joint interest is taken as correct, by filing the captioned appeal.

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57. In the contextual situation the following decisions assumes relevance. The decision in Bhurey Khan v. Yaseen Khan ; reported in 1995 Supp (3) SCC 331, was referred to in the impugned judgment by the High Court to reject the aforesaid contention of the appellants therein viz. original defendant Nos. 1 and 2. In paragraph 4 of the decision in Bhurey Khan’s case , this Court held thus:-

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“ 4.……the estate of the deceased was thus sufficiently represented. If the appellant would not have filed any application to bring on record the daughters and the widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265. The position, in our opinion, would not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of the deceased was represented the appeal could not have been abated.”

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58. In the decision in State of Andhra Pradesh through Principal Secretary and Ors. v. Pratap Karan and Ors; reported in (2016) 2 SCC

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82 , this Court held:-

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“ 40. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the pattadar and khatadar, the plaintiffs succeeded the estate as sharers being the sons of khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. Therefore, by reason of non- substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission made by the learned counsel appearing for the appellants.”

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59. We are of the considered view that the same analogy is applicable in a case where even in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives. In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution

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of all the other legal representatives of the deceased defendant.

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60. In this case, it is to be noted that along with the deceased third defendant the original defendant Nos. 1 and 2 were jointly defending their joint interest. Hence, applying the ratio of the aforesaid decision and taking into account the fact that the appellants/ the original defendants No. 1 and 2 despite the death of original defendant No.3 defended the suit and preferred and prosecuted the first appeal. Upon the death of the second appellant the joint interest is being fully and substantially taken forward in this proceeding as well by the first appellant along with the substituted legal representatives of the deceased second appellant, we do not find any reason to disagree with the conclusions and findings of the courts below for rejecting the contention that suit ought to have held abated owing to the non- substitution of all the legal heirs of deceased third defendant against all defendants. For the same reason, the contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail.”

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In the backdrop of the above settled position of law, the question which the learned Executing Court ought to have decided in the present facts is, as to whether the decree passed by the Learned Trial Court would at all be a nullity when the Defendant No. 1 had claimed right over the suit land on the basis of the Deed of Sale dated 12.12.1968, which was in favour of the Defendant No. 1 (i), and the Defendant No. 1 (i) was alive when the judgment and decree dated 29.11.2001 was passed. However, from a perusal of the impugned order dated 20.08.2022, it is seen that the Learned Executing Court did not address the said aspect, rather dismissed the Executing proceedings, merely on the ground that the Defendant No. 1 expired on 25.06.2000, prior to the judgment and decree dated 29.11.2001.

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Considering the above, this Court, therefore, sets aside the impugned order dated 20.08.2022 and restores the execution proceedings being Misc Execution Case No. 38/2018, to the file of the Learned Executing Court, and direct the learned Executing Court, i.e., the learned Court of Munsiff No. 2, Goalpara, to adjudicate as to whether the executing proceedings can continue, in so far as the legal representatives of the defendant No. 1 (i), who are also the legal representatives of the defendant No. 1, inasmuch, as the Defendant No. 1 (i) was alive when the suit was decreed.

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Accordingly, the instant revision petition stands allowed with the following observations and directions:-

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(i) The Title Execution Case No. 12/2013, is restored to the file of the Court of the learned Munsiff No. 2, Goalpara.

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(ii) The Learned Executing Court, on the basis of the materials on record, shall duly consider, as to whether the Execution proceedings can proceed against the legal representatives of the Defendant No. 1 (i), inasmuch, as the Defendant No. 1 (i) was alive when the judgment and decree dated 29.11.2001 was passed and both the Defendant No. 1 and Defendant No. 1 (i) claimed right over the suit land on the basis of the Deed of Sale dated 12.12.1968-Exhibit-‘ka’.

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(iii) The parties herein, who are duly represented are directed to appear before the learned Executing Court, on 1^st of July, 2025, for further proceeding of Title Execution Case No. 12/2013.

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(iv) The Registry shall forthwith return the LCR to the Learned Executing Court and ensure that the same is received before the next date as fixed by this Court before the learned Executing Court.

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JUDGE

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Dorothy

Babulal Chhajer v. on the Death of Abdul Hai His Legal Heirs Gulanbandi and 5 Ors.

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Babulal Chhajer v. on the Death of Abdul Hai His Legal Heirs Gulanbandi and 5 Ors.

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