Gunindra Sarma @ Gunin Sarma and 4 Ors. Vs Harmohan Pathak

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GAHC010184752024

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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)/346/2024

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GUNINDRA SARMA @ GUNIN SARMA AND 4 ORS SON OF LATE ARUN SARMA, PRESIDENT, NAGAON RASH COMMITTEE, RESIDENT OF VILLAGE- NAGAON, MOUZA- NAGAON, P.S.- BARPETA, DISTRICT- BARPETA, ASSAM.

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2: KULENDRA DEKA SON OF LATE GIRIN DEKA

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MEMBER NAGAON RASH COMMITTEE

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RESIDENT OF VILLAGE- NAGAON

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MOUZA- NAGAON P.S.- BARPETA

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DISTRICT- BARPETA ASSAM.

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3: DINESH PATHAK SON OF LATE NAWRAM PATHAK

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ADVISER NAGAON RASH COMMITTEE

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RESIDENT OF VILLAGE- NAGAON

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MOUZA- NAGAON P.S.- BARPETA

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DISTRICT- BARPETA ASSAM.

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4: PRADIP DAS SON OF LATE TARUN DAS

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MEMBER NAGAON RASH COMMITTEE RESIDENT OF VILLAGE- NAGAON

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MOUZA- NAGAON P.S.- BARPETA DISTRICT- BARPETA ASSAM. 5: KALINDRA DEKA SON OF LATE KRISHNA KANTA DEKA

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RESIDENT OF VILLAGE- NAGAON MOUZA- NAGAON P.S.- BARPETA DISTRICT- BARPETA ASSAM VERSUS

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HARMOHAN PATHAK SON OF LATE CHANARAM PATHAK, RESIDENT OF VILLAGE- NAGAON, MOUZA- NAGAON, P.S.- BARPETA, DISTRICT BARPETA (ASSAM) PRESENTLY RESIDING AT VIP ROAD, MILAN NAGAR, MOUZA- DAKSHIN RANI, P.O.- AZARA SO, P.S.- AZARA (AIRPORT), DISTRICT- KAMRUP METRO, ASSAM, PIN- 781017.

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Advocate for the Petitioner : MR. P S DEKA, MS. A CHAKRABARTY,MS B LAHKAR,MR B S DEKA,MR. B K BHAGAWATI

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Advocate for the Respondent : MR. N N JHA , MS M SAHOO,MR. M UDDIN

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BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

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ORDER

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Date : 05.12.2025

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1. Heard Mr. P. S. Deka, the learned senior counsel assisted by Mr. B. K. Bhagawati, the learned counsel for the petitioners. Also heard Mr. N. N. Jha, the learned counsel for the respondent.

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2. This application under Article 227 of the Constitution of India has been filed by the petitioners impugning the order dated 08.02.2024 passed by the Court of learned Civil Judge (Junior Division) No. 1, Barpeta in Title Suit No. 60/2017 by which the prayer for adjournment sought for by the defendant, Ghanashyam Talukdar was rejected and the said Title Suit was fixed for argument on the next date.

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3. The present petitioners have also impugned the order dated 26.07.2024 to the extent of rejecting the prayer of the newly impleaded defendants, namely, Gunindra Sarma and Kulendra Deka to adduce evidence though their prayer for impleadment, as defendants, under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 was allowed.

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4. The learned senior counsel for the petitioners has submitted that by the first impugned order, the Trial Court mainly rejected the prayer for adjournment on the ground that no medical document was submitted by the defendant, Ghanashyam Talukdar. However, he submits that the Trial Court did not record any finding that the defendant was not facing severe health problems as was averred in the adjournment application.

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5. He further submits that the Trial Court also erred in mentioning the name of the substituted defendant No. 7 as Kulendra Deka @ Kalindra Deka, in

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as much as, Kulendra Deka and Kalindra Deka are the names of different persons with different fathers’ name. He further submits that Kulendra Deka was not a party to the suit at the first instance, only Kalindra Deka was arrayed as defendant No. 7 in the plaint. He further submits that there was no prayer in the application made under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 to strike out the name of Kalindra Deka as defendant No. 7, however, the Trial Court erred in striking out the name of Kalindra Deka, while allowing the impleadment prayer by Kulendra Deka.

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6. The learned senior counsel for the petitioners also submits that the Trial Court also erred in mentioning the name of newly impleaded defendant No. 7 as Kulendra Deka @ Kalindra Deka in the impugned order without any basis for the same. He further submits that the suit land has been in adverse possession of the Nagaon Rash Committee since 1936 and in the Title Suit filed by the plaintiff, the defendants have filed written statement along with the counter claim wherein they have prayed for a declaration of right, title and interest on the basis of adverse possession. He further submits that as the Trial Court by the impugned order itself had allowed the prayer for impleading Kulendra Deka, who was not the party to the suit in the original plaint as one of the defendants, he has to be given an opportunity to adduce evidence in his defence, as he did not participate in the suit till the impleadment order was made.

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7. The learned Senior counsel for the petitioners further submits that though in the Title Suit, the defendants are shown as Office Bearer of Nagaon Rash Committee, however, as Nagaon Rash Committee is not a registered society, it is not a legal entity, therefore, defendants have to be treated in their individual capacity and, as such, a newly impleaded defendant gets right to file

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written statement and adduce evidence if such an opportunity was not granted to him earlier by the Court.

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8. On the other hand, Mr. N. N. Jha, the learned counsel for the respondent has vehemently opposed the submissions made by the learned senior counsel for the petitioner. He submits that in the order dated 08.02.2024, there is no infirmity or illegality, in as much as, on failure of the defendant, Ghanashyam Talukdar to substantiate the contention of severe health problem by adducing the medical documents, the Trial Court rejected the prayer for adjournment. He further submits that while rejecting the adjournment application, the trial court also observed that the cost imposed on the earlier date for grant of adjournment to defendant was also not made while making adjournment on the subsequent date, though the said cost was imposed on 04.12.2023 as the condition precedent for granting adjournment. He further submits that the plaintiff’s evidence was closed on 23.05.2022 and thereafter, the suit was fixed on 16.06.2022 for examination of the defendant’s evidence. However, for long 1½ years, the defendant failed to adduce any evidence and therefore, he submits that by the impugned order dated 08.02.2024, the Trial Court rightly rejected the prayer for adjournment and closed the defendant’s evidence and fixed the case for argument.

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9. Mr. N. N. Jha, the learned counsel for the respondent has fairly submitted that though there appears to be some infirmity in the impugned order dated 26.07.2024, in as much as, it mentioned the name of the newly impleaded defendant/respondent No. 7 as Kulendra Deka @ Kalindra Deka, however, no basis for the same is there on record. He further fairly submits that there was only prayer for impleading Gunindra Sarma and Kulendra Deka as defendants under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908. He

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submits that while Gunindra Sarma was also earlier defendant No. 6 in the plaint as one of the Member of the Nagaon Rash Committee, however, he was later on selected as the President of the Nagaon Rash Committee in place of Ghanashyam Talukdar and accordingly, the impleadment was allowed. However, he submits that in respect of Kalindra Deka, who was earlier impleaded in the plaint as one of the Members of the Nagaon Rash Committee, there was no prayer for striking out his name. He submits that the only prayer was made for impleading the name of one Kulendra Deka after he was selected as the Secretary of the Nagaon Rash Committee in place of the earlier Secretary, namely, Manabendra Deka.

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10. He further submits that the impleadment prayer was allowed only because there was change in the Office Bearers of the Nagaon Rash Committee. He submits that the averments in the plaint have been made against the Office Bearer and the Members of the Nagaon Rash Committee are not against them in their individual capacity. He submits that in the written statement as well as in the counter claim also the averments regarding adverse possession have been made on the basis that it is Nagaon Rash Committee, which is in possession of the said plot of land since long. No assertion by any individual Member in his individual capacity has been made claiming any kind of right over the suit land, therefore, the Trial Court was correct while allowing the impleadment application, but rejecting the prayer for adducing further evidence by the newly impleaded defendants.

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11. I have considered the submissions made by the learned counsel for both sides and have also gone through the materials available on records of the case.

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12. On perusal of the records, it appears that the Title Suit No. 60/2017 was

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filed by the present respondent, namely, Harmohan Pathak , against seven defendants, who were shown as the office bearer of Nagaon Rash Committee in various capacities.

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13. In the said suit, the respondent, as plaintiff, has claimed the relief of declaration of his right, title and interest over the suit land, measuring above 1 Bigha 2 Kathas and also for recovery of khas possession thereof. It has been alleged in the plaint that the suit land, which is presently in form of a fishery, was trespassed into on 11.10.2015 by the defendants and the plaintiff was dispossessed therefrom.

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14. On the other hand, the defendants had filed a joint written statement and counterclaim, claiming therein that the suit land is in possession of Nagaon Rash Committee since 1936 and it has been used as a fishery since then. In the counterclaim, the defendants have prayed for declaration of possessory rights of Nagaon Rash Committee upon the suit land, amongst other reliefs.

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15. On perusal of the records, it appears that the impugned order dated 26.07.2024 was passed on the basis of an application which was registered as Petition No. 1221/2024, under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908 made by the petitioners Gunindra Sarma and Kulendra Deka for impleading them as defendants in the suit on the ground that they have been elected as President and Secretary of the Nagaon Rash Committee respectively and they may be allowed to adduce evidence as defendants.

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16. It also appears that by the impugned order dated 26.07.2024, the Trial Court allowed the prayer for impleadment of Gunindra Sarma and Kulendra Deka as President and Secretary of Nagaon Rash Committee in place of the earlier President and Secretary, namely, Ghanashyam Talukdar and Manabendra

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Deka, who were the original defendant Nos. 1 and 2 respectively, in the said title suit. The Trial Court mainly allowed the prayer because of the fact that the plaintiff's side did not oppose the said prayers as it accepted the fact that the office bearers of the Nagaon Rash Committee have been changed. It appears that in the original plaint filed by the present respondent, the name of the defendant No. 1 has been shown as Ghanashyam Talukdar, who was shown as the President of Nagaon Rash Committee. Though, the name of Gunindra Sarma is already there in the plaint, however, his designation was shown as a Member of Nagaon Rash Committee. The learned counsel for the plaintiff did not raise any objection before the Trial Court regarding the prayer that the name of Ghanashyam Talukdar may be strike out and Gunindra Sarma's name may be impleaded in his place as President of Nagaon Rash Committee.

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17. However, it appears that the name of Kulendra Deka was not there as a defendant in the original plaint filed by the plaintiff. Whereas, the name of defendant No. 7 shown in the plaint was one Kalindra Deka. On perusal of the written statement cum counterclaim filed by the defendants, it also appears that Kalindra Deka, son of Krishnakant Deka was the defendant No. 7 in the said title suit and there was no prayer for striking out his name. The prayer made by the Kulendra Deka, for impleadment, was mainly on the ground that he was selected as the Secretary of Nagaon Rash Committee. It appears that Kulendra Deka and Kalindra Deka are different persons. Thus, it appears that the name of Kulendra Deka has been shown as Kulendra Deka @ Kalindra Deka in paragraph No. 12 of the impugned order dated 26.07.2024 without any basis for the same.

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18. However, on the perusal of the petition filed by the petitioner Kulendra Deka and Gunindra Sarma under Order 1 Rule 10 (2) of the Code of Civil Procedure, 1908, it becomes clear that the said application was made mainly on

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the basis that they took the charge as the President and the Secretary, respectively of the Nagaon Rash Committee. No other ground was taken for such impleadment. In fact, the plaintiffs had made concession to the said prayer and impleadment was allowed only since the petitioners were selected as President and Secretary of Nagaon Rash Committee. The plea of the defendants in their written statement cum counterclaim remained same. Further, there is no prayer for filing any additional written statement by the newly impleaded Secretary of Nagaon Rash Committee and only prayer for allowing the newly impleaded defendants to adduce evidence was made.

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19. Thus, it appears that the names of Ghanashyam Talukdar and Manabendra Deka were struck out only because they no longer remained as the President and Secretary of the Nagaon Rash Committee. Whereas the name of Kulendra Deka was impleaded in place of Manabendra Deka as he had taken charge as the Secretary of Nagaon Rash Committee and the name of Gunindra Sarma has been shown in place of Ghanshyam Talukdar as President of Nagaon Rash Committee. No other ground for their impleadment was taken apart from the fact that the petitioners have taken over as President and Secretary of the Nagaon Rash Committee.

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20. The Apex Court of India in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, reported in (2010) 08 SCC 329 has observed that in exercise of its power of superintendence, High Court cannot interfere to correct mere errors of law or fact, or just because another view than the one taken by the courts or tribunals subordinate to it is a possible view. In other words, the jurisdiction under Article 227 of the Constitution of India has to be very sparingly exercised.

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21. It also appears from record that after closure of the evidence of

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plaintiff's side on 23.05.2022, the suit was fixed for examination of defendant's witness on 16.06.2022. However, for long one and a half years, when the defendant failed to adduce any evidence, the Trial Court closed the defendant's evidence by order dated 08.02.2024. It appears that the prayer for adjournment by the defendant's side was rejected, mainly on the ground that the defendants failed to substantiate the plea of ailment of earlier Defendant Ghanashyam Talukdar by showing any medical documents to that effect. Further, the Trial Court also considered the fact that the cost imposed on the defendants on earlier occasion was also not deposited.

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22. It appears that the Trial Court earlier had fixed this suit for examination of defendant's evidence on 16.06.2022 and sufficient indulgence was granted to the defendant's side till 08.02.2024 for adducing defendant's evidence. However, when the defendants’ side failed to do so without any valid ground, the Trial Court passed the impugned order dated 08.02.2024 and fixed the case for argument. This Court finds no illegality or infirmity in the order dated 08.02.2024.

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23. Further, the Trial Court, by the impugned order dated 26.07.2024, had correctly rejected the prayer for reopening of the defendant's evidence, mainly on the ground that Kulendra Deka, who was not a defendant earlier, was allowed to be impleaded and substituted in place of Manabendra Deka mainly because he took charge as the Secretary of Nagaon Rash Committee.

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24. This court finds no illegality or irregularity in the said order justifying any interference in exercise of its powers of superintendence under Article 227 of the Constitution of India.

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25. Accordingly, for the reasons stated in the foregoing paragraphs, this

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Court finds no ground to interfere in the impugned orders dated 08.02.2024 as well as 26.07.2024, except to the extent that the name of the newly impleaded defendant, namely, Kulendra Deka, shall be shown as defendant No. 2 in place of Manabendra Deka. Further, the name of earlier defendant No.7, namely, Kalindra Deka shall be retained in the plaint as well as written statement cum counterclaim in the Title Suit No. 60/2017.

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26. The stay of the proceedings of the Title Suit No. 60/2017, granted earlier by this Court stands vacated. The Trial Court shall proceed with the suit in its normal course.

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27. This CRP (IO) is accordingly disposed of.

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JUDGE

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Comparing Assistant

Gunindra Sarma @ Gunin Sarma and 4 Ors. v. Harmohan Pathak

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Gunindra Sarma @ Gunin Sarma and 4 Ors. v. Harmohan Pathak

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