On the Death of Samostobhan Bibi Her Legal Heirs… — Writ and Judicial Review

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GAHC010208522023

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2025:GAU-AS:257

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

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Case No. : CRP(IO)/292/2023

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ON THE DEATH OF SAMOSTOBHAN BIBI HER LEGAL HEIRS - DIST.- DHUBRI, ASSAM

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1.1: SANTAR ALI

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S/O LATE KUTUB UDDIN SK. RESIDENT OF VILL- GERAMARI PART- V (BAIRERGAON) P.S.- GAURIPUR DISTRICT- DHUBRI ASSAM

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1.2: ALEYA KHATUN BIBI

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D/O LATE KUTUB UDDIN SK. RESIDENT OF VILL- GERAMARI PART- V (BAIRERGAON) P.S.- GAURIPUR DISTRICT- DHUBRI ASSAM.

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2: DILJAN BIBI D/O- LATE DEWAN ALI @ DEWAN SK W/O- LATE NEJABUDDIN SK R/O- VILL.- ROWA PART-III (SIMLAKANDI) P.S. AND DIST. DHUBRI ASSAM

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3: MOYNA BIBI D/O- LATE DEWAN ALI @ DEWAN SK W/O- LATE SABUR ALI R/O- VILL.- GERAMARI PART-VI (BENGUNTOLI) P.S. GAURIPUR DIST. DHUBRI ASSAM

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4: SURATBHAN BIBI

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D/O- LATE DEWAN ALI @ DEWAN SK W/O- LATE FOZEN ALI R/O- VILL.- ROWA PART-III (KHASH KHAMAR) P.S. AND DIST. DHUBRI ASSAM

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5: SAHIDUR RAHMAN S/O- LATE KASHEM ALI R/O- VILL.- FALIMARI PART-II P.O. FALIMARI P.S. AND DIST. DHUBRI ASSAM

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6: OMAR FARUK S/O- LATE KASHEM ALI R/O- VILL.- FALIMARI PART-II P.O. FALIMARI P.S. AND DIST. DHUBRI ASSAM

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7: ASMA BIBI D/O- LATE KASHEM ALI R/O- VILL.- FALIMARI PART-II P.O. FALIMARI P.S. AND DIST. DHUBRI ASSAM

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8: KASHEMA BIBI D/O- LATE KASHEM ALI R/O- VILL.- FALIMARI PART-II P.O. FALIMARI P.S. AND DIST. DHUBRI ASSAM

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9: AHIRON BIBI W/O- LATE KASHEM ALI R/O- VILL.- FALIMARI PART-II P.O. FALIMARI P.S. AND DIST. DHUBRI ASSA

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VERSUS

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HASHEM ALI @ HASEN ALI AND 5 ORS S/O- LATE KASHEM ALIL SK, R/O- VILL.- FOLIMARI PART-II, P/OFOLIMARI, PS. GAURIPUR, DIST. DHUBRI, ASSAM, PIN- 783325.

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2:MD. NASEM ALI

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S/O- LATE DEWAN ALI @ LATE DEWAN SK. R/O- VILL.- FOLIMARI PART-II P.O.- FOLIMARI PS. GAURIPUR DIST. DHUBRI ASSAM PIN- 783325. 3:MD. ATOWAR ALI S/O- LATE DEWAN ALI @ LATE DEWAN SK. R/O- VILL.- FOLIMARI PART-II P.O.- FOLIMARI PS. GAURIPUR DIST. DHUBRI ASSAM PIN- 783325. 4:MD. AKHTAR ALI @ AKHTAP ALI S/O- LATE DEWAN ALI @ LATE DEWAN SK. R/O- VILL.- FOLIMARI PART-II P.O.- FOLIMARI PS. GAURIPUR DIST. DHUBRI ASSAM PIN- 783325. 5:MD. ROFIAL HOQUE S/O- LATE KASHEM ALI R/O- VILL.- FOLIMARI PART-II P.O.- FOLIMARI PS. GAURIPUR DIST. DHUBRI ASSAM PIN- 783325. 6:MD. SOFIAL HOQUE S/O- LATE KASHEM ALI R/O- VILL.- FOLIMARI PART-II P.O.- FOLIMARI PS. GAURIPUR DIST. DHUBRI ASSAM PIN- 783325

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Advocate for the Petitioner : MR. R ALI, J TALUKDAR

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Advocate for the Respondent : MR. M S MONDAL (R-1), MR. D A KAIYUM (R-1)

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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Date : 08.01.2025

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Heard Mr. R. Ali, learned counsel for the petitioners and Mr. D.A. Kaiyum, learned counsel for the respondent No. 1.

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2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the legality of the order dated 20.06.2023, passed by the learned Munsiff No. 3, Dhubri, in Title Suit No. 1/2022.

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3 . It is to be noted here that vide impugned order dated 20.06.2023, the learned Munsiff No.3, Dhubri (‘Trial Court’, for short) had dismissed the petition No. 412/2023, filed by the present petitioners, under Order 1 Rule 3, Rule 10 (2) of the CPC, to implead them as defendants in Title Suit No. 1/2022.

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4 . The background facts, leading to filing of the present petition, are briefly stated as under:

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“The respondent No. 1, namely, Md. Hashem Ali @ Hasen Ali instituted a Title Suit No. 1/ 2022, before the learned Trial Court against five defendants, namely, Md. Nasem Ali, Md. Atowar Ali, Md. Akhtar Ali @ Akhtap Ali, Md. Rofial Hoque and Md. Sofial Hoque for a decree, for declaration of the plaintiff’s right, title and interest over the suit land at Schedule-A, with confirmation of his possession and also for a declaration of the Sale Deed No. 1423, dated 03.07.1997, of Sub-Registrar’s Office, Dhubri executed by the defendants in favour of the plaintiff is valid and binding upon them and that the defendants have no valid right, title and interest on the suit land at

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Schedule-A and for a decree of permanent injunction, restraining the defendants, their agents, successors and representatives from dispossessing the plaintiff from the suit land at Schedule-A and from disturbing his ownership and possession therein in any manner. While the suit was pending for consideration of issues, the present petitioners filed a petition, being petition No. 412/2023, for impleadment as defendants in the said Title Suit. The respondent No. 1 herein, had filed his objection and thereafter, hearing both the parties and also considering the materials placed on the record, the learned Trial Court had held that the questions involved in the Title Suit are:

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(i) Whether the registered Sale Deed No. 1423, dated 03.07.1997 is valid and binding upon the parties?

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(ii) Whether the plaintiff has right, title and interest in the suit land on the strength of the aforesaid sale deed?

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The learned trial court had also found that the sale deed in question was executed by the present defendants in favour of the plaintiff and there was no allegation of any cause of action sought by the plaintiff against the petitioners and the instant suit can be factually and completely adjudicated upon, without impleading the petitioners as a party to the suit and as such, the petitioners do not appear to be necessary party in the instant suit. Thereafter, the learned trial court had dismissed the petition.

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Being aggrieved, the petitioners have approached this Court by filing the present petition under Article 227 of the Constitution of

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India.”

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5 . Mr. R. Ali, learned counsel for the petitioners submits that the impugned order suffers from manifest illegality and the same is also arbitrary as because the learned Trial Court has not considered the fact that the present petitioners are the brothers and sisters of the defendants in the Title Suit and their interest is involved in the same and as such, they are necessary party to the Title Suit and therefore, Mr. Ali has contended that the impugned order may be set aside and quashed. In support of his submission, Mr. Ali has referred to two decisions of this Court in the cases of Kshitish Chandra Mitra vs. Dewan Sheikh and Ors., reported in 1975 0 Supreme(Gau) 15 and Neeva Konwar vs. Koustav Moni Changmai, reported in 2023 0 Supreme(Gau) 665 .

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6 . Per contra, Mr. D.A. Kaiyum, learned counsel for the respondent No. 1 submits that the impugned order so passed by the learned Trial Court, suffers from no infirmity or illegality requiring any interference of this Court by exercising the jurisdiction under Article 227 of the Constitution of India. Mr. Kaiyum has pointed out that the present petitioners are not the owner of the land and the land was not purchased from them and no relief is being claimed against them and as such, the learned Trial Court has rightly rejected the petition filed by the present petitioners. Mr. Kaiyum, has referred to a decision of this Court in CRP (IO) No. 290/2022 (Rupali Baglary Dutta vs. Smt. Pratima Dutta and 5 Ors .) to contend that while the remedy for appeal and revision is available, the jurisdiction under Article 227 of the Constitution of India cannot be exercised and here in this case, the petitioners ought to have preferred one revision petition under Section 115 of the CPC. But, instead of doing so, the petitioners have preferred this petition under Article 227 of the Constitution of India, which is not at all maintainable and therefore, Mr. Kaiyum

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has contended to dismiss the petition.

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7 . Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 20.06.2023 and the decisions referred by learned counsel for both the parties.

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8 . The law in respect of impleadment of a party is well settled in a catena of decision of Hon’ble Supreme Court, in the case of Ramesh Hiranand Kundanmal vs. Municipal Corporation of Greater Bombay and Ors ., reported in (1992) 2 SCC 524 , in paragraph 6, it has been held that a necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

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9 . Thus, it appears that two tests are required to be satisfied with for impleading a party to a suit as necessary party:

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(i) There must be right to some relief against such party in respect of the controversies involved in the proceeding.

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(ii) No effective decree can be passed in absence of such party.

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10 . In the case in hand, at the time of hearing, a specific question was put to Mr. Ali, learned counsel for the petitioners that whether the plaintiff/respondent No. 1 herein, sought for any relief against the present petitioners to which Mr. Ali has denied the same.

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11 . Further, from the documents placed on record it appears that respondent No.1 had prayed for declaration that the registered Sale Deed No.1423, dated 03.07.1997 is valid and binding upon the defendants and to declare that the plaintiff has right, title and interest in the suit land on the strength of the aforesaid sale deed. The present petitioners are neither a party to the aforesaid sale deed, nor any relief, admittedly being sought for against them and the learned Trial Court had categorically held that there is no allegation or any cause of action sought by the plaintiff/respondent No. 1 against the petitioners, and that the dispute between the parties can be factually and completely adjudicated without impleading the present petitioners as a party.

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12. Thus, having examined the impugned order on the touchstone of the principles discussed herein above, this Court is of the view that the impugned order so passed by the learned Trial Court suffers from no infirmity or illegality requiring any interference of this court under Article 227 of the Constitution of India.

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13. I have gone through the decisions referred by Mr. Ali, learned counsel for the petitioners. There is no quarrel at the bar about the proposition of law laid down therein, but, they clearly rest on the facts of those cases and would not come into assistance of the petitioners.

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14. Further, Mr. Kaiyum, learned counsel for the respondent No. 1 has rightly pointed out that a petition under Article 227 of the Constitution of India is not maintainable when alternative remedy is available under Section 115 of the CPC or when appeal is provided. In the case in hand, the petitioners could have preferred a revision petition under Section 115 of the CPC, but instead they have preferred the present petition under Article 227 of the Constitution of India, which cannot be exercised to test the legality and validity of the

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impugned order.

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15. In the result, I find no merit in this petition and accordingly, the same stands dismissed.

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16. The parties have to bear their own cost.

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JUDGE

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On the Death of Samostobhan Bibi Her Legal Heirs - v. Hashem Ali @ Hasen Ali and 5 Ors.

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On the Death of Samostobhan Bibi Her Legal Heirs - v. Hashem Ali @ Hasen Ali and 5 Ors.

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