Kashem Ali Vs Legal Heirs of Rabeya Khatun Bibi, Amer Ali and 12 Oths

Advocate for the Respondent : , MS M KALITA (R 5&6),MR. SURAJIT DAS(R1TO4,7TO11,13),MR. P P DAS(R-1TO4,7TO11,13),MR. SURAJIT DAS(R-1),MR. P P DAS (R-1)

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Page No.# 3/8

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BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

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ORDER

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Date - 11.05.2026

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1. Heard Ms. R. Choudhury, the learned senior counsel assisted by Ms. S. E. Murtaja, the learned counsel appearing for the appellant. Mr. S. Das, the learned counsel for the respondent Nos. 1 to 4, 7 to 11 and 13. None has appeared for the respondent Nos. 5 and 6. Though, on earlier occasion Ms. M. Kalita, the learned counsel for the respondent Nos. 5 and 6 had appeared. It also appears that since respondent No. 12 had expired hence, this Court directed to strike out the name of respondent No. 12 from the Memo of Appeal.

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2. This appeal, under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908, has been preferred by the present appellant, Kashem Ali, impugning the order dated 22.03.2024 passed by the Court of the learned Civil Judge (Senior Division), Dhubri in Title Suit No. 26/2022, whereby the suit filed by the present appellant was dismissed on the ground that same is barred by the principles of Res-judicata.

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3. The brief facts relevant for consideration of the instant appeal are that the present appellant filed a title suit for declaration of his right, title and interest over land described in Schedule-B of the plaint along with the said relief, the relief of recovery of khas possession by evicting the defendant Nos. 1 to 4 was also made in the plaint.

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4. The learned senior counsel for the appellant submits that the

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predecessor-in-interest of the present respondents, namely, Ms. Rabeya Khatun Bibi had filed a title suit before the Court of Munsif No. 1, Dhubri, seeking declaration of her right, title and interest in respect of the suit land. The said suit was registered as Title Suit No. 337/2010. The Trial Court decreed the said suit against the present appellant. She further submits that being aggrieved by the decision of the Trial Court, the present appellant preferred an appeal before the Court of the learned Civil Judge, Dhubri. The said appeal was registered as Title Appeal No. 67/2013. In the aforesaid appeal, by judgment dated 09.02.2017, the First Appellant Court allowed the appeal and reversed the judgment of the Trial Court and dismissed the suit of the original plaintiff.

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5. She further submits that on being aggrieved by the decision of the First Appellate Court, the predecessor-in-interest of the present respondents, namely, Rabeya Khatun Bibi approached this Court by filing a Regular Second Appeal. The said appeal was registered as RSA No. 355/2017 and the said appeal is still pending before this Court.

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6. The learned senior counsel for the appellant submits that in the said appeal, the present appellant was not made a party. She further submits that though, an Interlocutory application for impleadment of the present appellant was filed in the aforesaid appeal, however, later on, the same was withdrawn.

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7. She also submits that during the pendency of the aforementioned Regular Second Appeal, the present appellant was dispossessed by the legal heirs of late Rabeya Khatun Bibi from Schedule-B land, as

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such, the present appellant had filed the Title Suit No. 26/2022.

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8. She also submits that in the earlier suit filed by Rabeya Khatun Bibi, no counter-claim was filed by the present appellant, as at that point of time, the present appellant was in possession over the plot of land, which is involved in the earlier suit (presently RSA No. 355/2017).

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9. The learned senior counsel for the appellant further submits that since the Regular Second Appeal No. 355/2017 is still pending before this Court and since the suit land in respect of the Title Suit No. 26/2022 is the same land as involved in Regular Second Appeal No. 355/2017, the present appellant had filed an application before the Trial Court under Section 10 of the Code of Civil Procedure, 1908, praying for staying the Title Suit No. 26/2022, however, the Trial Court instead of staying the said suit, dismissed the said suit, filed by the present appellant holding the same to be barred by the principles of Res-judicata.

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10. She further submits that even though the defendants did not objected to the petitions filed by the present appellant, the Trial Court on its own motion, without framing any specific issue in that regard and without calling for the records of the Title Suit No. 337/2010 disposed of the suit filed by the present appellant (Title Suit No. 26/2022) holding the same to be barred by Res-judicata which she submits is an irregularity committed by the Trial Court.

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11. She learned senior counsel for the appellant further submits that since the Regular Second Appeal No. 355/2017 is still pending, the

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final decision in suit filed by the predecessor-in-interest of the present respondent i.e., Title Suit No. 337/2010 is yet to come, hence, she submits that it is a fit case for applying the provisions of Section 10 of the Code of Civil Procedure, 1908.

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12. She further submits that the petition No. 801/2023 filed by the present appellant under Section 10 of the Code of Civil Procedure, 1908 was later on withdrawn by the present appellant, however, he again filed a petition (Petition No. 1683/2024) for keeping the Title Suit No. 26/2022 in abeyance, however, the Trial Court instead of deciding the said application for keeping the suit in abeyance dismissed the suit on the ground of Res-judicata.

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13. She submits that this is a fit case where the matter may be remanded back to the Trial Court to reconsider the Petition No. 1683/2024 filed by the present appellant praying for keeping the Title Suit No.26/2022 in abeyance during the pendency of the Regular Second Appeal No. 355/2017.

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14. On the other hand, Mr. S. Das, the learned counsel for the respondents No. 1 to 4, 7 to 11 and 13 fairly submits that the Trial Court appears to have erred in dismissing the Title Suit No. 26/2022 by holding that same as barred by Res-judicata as the Regular Second Appeal No. 355/2017 is still pending before the High Court.

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15. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record.

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16. Though the learned senior counsel for the appellant has submitted that in the suit filed by the present appellant, the relief sought for

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the cause of action in Title Suit No. 337/2010 and Title Suit No.26/2022 were different, as the present appellant who was in possession of the Schedule-B land was dispossessed therefrom during the pendency of the Regular Second Appeal No. 355/2017.

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17. It appears, prima facie, that since the Regular Second Appeal No. 355/2017 is still pending, hence, the final outcome of the suit filed by the predecessor-in-interest of the present respondent (Title Suit No. 337/2010) is yet awaited and, hence, it appears that the provisions of Section 11 of the Code of Civil Procedure, 1908 may not be applicable at this stage, the Trial Court appears to have erred on this count while passing the impugned order.

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18. Accordingly, this is a fit case, for remand of the case back to the Trial Court.

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19. The case is again remanded back to the Trial Court with a direction to reconsider the Petition No. 1683/2024 filed by the present appellant, which apparently is an application under Section 10 of the Code of Civil Procedure, 1908, though specific mention about that is not there in the said petition.

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20. The Title Suit No.26/2022 shall be restored to file and since both the parties are represented before this Court by their engaged counsel, both the parties are directed to appear before the Trial Court in Title Suit No.26/2022 on 01.06.2026.

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21. The Trial Court shall also afford an opportunity to the present respondents to file a written objection and after giving opportunity to both sides shall decide the said application and proceed with the

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suit, accordingly.

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22. Let a copy of this order be sent by the Registry of this Court to the Trial Court, immediately for compliance.

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23. This appeal is, accordingly, disposed of.

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JUDGE

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Comparing Assistant

Kashem Ali v. Legal Heirs of Rabeya Khatun Bibi, Amer Ali and 12 Oths

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Kashem Ali v. Legal Heirs of Rabeya Khatun Bibi, Amer Ali and 12 Oths

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