Samad Ali v. Heirs of Late Ajgar Ali Mainuddin Son and Ors,,

JUDGMENT AND ORDER (CAV) Heard Mr. K. Sarma, learned counsel representing the appellant as well as Mr. N. Haque, learned counsel appearing for the respondents.

¶2This is a Regular Second Appeal under Section 100 of the Code of Civil Procedure (CPC) whereby the judgment and decree dated

29.03.2012 passed by the court of learned Civil Judge, Barpeta in Title Appeal No.46/2011 is under challenge.

¶3The respondents filed the suit before the trial court praying for a declaration that they along with the present appellant are joint owners of a plot of land measuring 6 Bighas 2 Kathas 14 Lechas covered by Dag Nos.213 (2 Bigha 1 Katha 15 Lechas), 215 (1 Bigha 3 Khata 17 Lechas) and 214 (1 Bigha 2 Katha 2 Lechas) under the Periodic Patta No.45 of village Page No.# 3/5 Chakirbhitha, Mouza-Betbari, District-Barpeta, Assam.

¶4The respondents further prayed for a declaration of their right, title and interest and for partition of a plot of land measuring 2 Bighas 18 Lechas out of the aforementioned plot of land.

¶5Both the plots of land are described as under: "Schedule-A A plot of land measuring 6 B-2 K-14 Ls covered by dag Nos.213 (2 B-1 K-15 Ls), 215 (1 B-3 K-17 Ls) & 214 (1 B-2 K-2 Ls) under the periodic patta No.45 of village Chakirbhitha, Mouza-Betbari, District-Barpeta, Assam. Schedule-B A plot of land measuring 2B-0K-18Ls out of A Schedule land."

¶6The appellant contested the case by filing written statement and after the trial, the trial court dismissed the suit primarily on the ground that the suit land was not properly described in the schedule of the plaint and the decree will never be executed in such a case.

¶7The first appellate court disagreed with the trial court and decreed the suit of the respondents.

¶8The present second appeal was admitted for hearing upon the following two substantial questions:

¶1Whether the description of the suit property given in schedule B of the Plaint is in accordance with Order 7 Rule 3 of the Code of Civil Procedure, 1908?

¶2Whether the decree passed by the First Appellate Court is executable for non-compliance of the aforesaid provision of Page No.# 4/5 law?

¶9I have considered the submissions made by the learned counsels of both sides.

¶10Order 7 Rule 3 of the Code of Civil Procedure Reads as under: "Rule 3 – Where the subject-matter of the suit is immovable property.- Where the subject-matter of the suit is immovable property, the plaint shall contain description of the property sufficient to indentify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."

¶11There is no doubt that Schedule-B plot of land is a part of Schedule-A plot of land. But it is not clear where the Schedule-B plot of land stands over Schedule-A land. So, the Schedule-B land cannot be identified because no boundaries are given. If a decree is passed, such a decree will remain unexecutable because of lack of identification of the suit property. The learned first appellate court erroneously decreed the suit. Such a decree can never be executed in respect of an unidentifiable land.

¶12The substantial questions of law are answered accordingly. The Schedule-B land has not been described according to the law laid down under Order 7 Rule 3 of the Code of Civil Procedure. The decree passed by the first appellate court is not executable for non-compliance of the said Rule.

¶13Under the aforesaid premised reasons, I find sufficient merit in the appeal. Accordingly, the appeal is allowed.

¶14The impugned judgment and decree dated 29.03.2012 passed by Page No.# 5/5 the court of learned Civil Judge, Barpeta in Title Appeal No.46/2011 is set aside. The appeal is disposed of. Send back the LCR. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010007652012 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/151/2012ooooooooo SAMADoALIo S/OoLATEoABDULoBASER,oR/OoVILL.oCHAKIRBHITHA,oUNDERoBETBARIo MOUZAoINoTHEoDIST.oOFoBARPETAo,oWITHINoTHEoSTATEoOFoASSAM VERSUSo HEIRSoOFoLATEoAJGARoALIoMAINUDDINoSONoandoORS,,o 2:AMIRoALIoSON oBOTHoAREoRESIDENTSoOFoVILL.oCHAKIRBHITHA oUNDERoBETBARIoMOUZA oP.O.oKHABLARoBHITHA oPIN-781352 oINoTHEoDIST.oOFoBARPETA oWITHINoTHEoSTATEoOFoASSAM. 3:IMANoALI oS/OoLATEoSANGSHERoALI 4:NABABoALI oS/OoLATEoWAHABoALI 5:RAFIQULoISLAM oS/OoLATEoKHABIRUDDIN oALLoAREoRESIDENTSoOFoVILL.oCHAKIRBHITHA oUNDERoBETBARIoMOUZA oP.O.oKHABLARoBHITHA oPIN-781352 oINoTHEoDIST.oOFoBARPETA Page No.# 2/5 WITHIN THE STATE OF ASSAM Advocate for the Petitioner : MR.K SARMA Advocate for the Respondent : MRK UDDIN :: PRESENT :: THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellant : Mr. K. Sarma, Advocate. For the Respondents: Mr. N. Haque, Advocate. Date of Hearing : 12.09.2023. Date of Judgment : 21.09.2023.