Gauripur Consumers Co-Operative Stores, v. On the Death of Gajanand Prosad Kanu His Legal Heirs Smti Bindu Kanu and Ors

JUDGMENT & ORDER The instant appeal has been preferred under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.06.2009 passed by the learned Civil Judge, Dhubri in Title Appeal No. 14/2007 dismissing the said appeal and upholding the judgment and decree dated 22.01.2007 passed by the Page No.# 3/7 learned Munsiff No. 3, Dhubri in Title Suit No.446/2002.

¶2The present appellant was the defendant no. 5 in the suit. The suit was filed with the following prayers:

"(a) The suit be decreed declaring that the plaintiff obtained decree in T.S. 15/99 /T.A. 93/79 for the suit land and has acquired right, title and interest over the same.

(b) The suit be decreed declaring that the defendants are legally bound to abide by the decision of the decree in T.S. 15/79 and T.A. 33/79 and correct the records of rights accordingly.

(c) A permanent injunction shall be granted restraining the defendants No. 1 to 4 from evicting the plaintiff from suit land and give possession to the defendant no. 5 for the same.

(d) Cost etc. and any other reliefs the plaintiff is entitled to get in law and equity."

¶3It is projected in the suit that in respect of the suit land, the plaintiff had instituted Title Suit No. 15/1979 which was, however, dismissed on 01.09.1979. Being aggrieved, Title Appeal No. 93/1979 was preferred before the learned ADJ which was also dismissed. The plaintiff had accordingly preferred SA/176/1987 and 186/1987 before this Court. This Court had, however, remanded the matter for fresh adjudication by the 1st Appellate Court. On such remand, the 1st Page No.# 4/7 Appellate Court had decreed the suit by interfering with the judgment and order of the learned Trial Court dated 01.09.1979. The present defendant no. 5 was, however, not party in the said suit.

¶4The present suit from which this appeal has arisen was subsequently filed in the year 2002 with the prayers which have already been mentioned above. The learned Trial Court had decreed the suit which has also been affirmed by the 1st Appellate Court by the impugned judgment and order 23.06.2009 and accordingly, the present second appeal has been preferred.

¶5This Court vide order dated 07.12.2016 had framed the following substantial question of law:

"Whether on the face of the prayer made by the plaintiff/respondent the judgment and decree passed by the Court below are maintainable?"

¶6I have heard Shri SK Ghosh, learned counsel for the appellant. I have also heard Shri A Mobaraque, learned counsel for the respondent nos. 1 (a), 1 (b), 1

(c) and 1 (d). Shri KK Bhattacharjee, learned State Counsel, Assam is present for rest of the respondents.

¶7It may be mentioned that during the pendency of the appeal, the respondent no. 1 had passed away and the aforesaid respondents are his legal heirs.

Page No.# 5/7

¶8Shri Ghosh, learned counsel for the appellant has submitted that the original respondent no. 1 in this appeal had the option of filing execution proceeding in respect of decree passed earlier which was admittedly not done. He submits that only to overcome the lacuna, the instant suit was instituted. The learned counsel questions the very maintainability of such suit when remedies in law were available to the party which was not taken recourse to. By referring to Section 34 of the Specific Relief Act, the learned counsel for the appellant has submitted that under the proviso thereto, there is a bar and this aspect has been overlooked by both the courts below.

¶9Shri Ghosh, learned counsel for the appellant has submitted that the plot of land in the possession of the defendant no. 5 which is a Cooperative Society was duly allotted by the Assistant Settlement Officer, Dhubri in the year 1993. He has also pointed out that such allotment was never challenged in any forum of law. He further submits that since a bar is there in the Assam Land and Revenue Regulation, in the present suit, there was no specific challenge to the said order of allotment. The learned counsel has clarified that the land in question has already been demarcated with boundary walls and in fact, the apprehension of the respondents-plaintiffs is based on assumption.

¶10Shri Mobaraque, learned counsel for the respondents has, however, defended the impugned judgment and decree of the 1st Appellate Court by which the judgment and decree of the learned Trial Court has been upheld. He submits that there is no bar in institution of the suit and the proviso to Section 34 of the Specific Relief Act, 1993 sought to be relied upon by the appellant would not come into operation in the facts and circumstances of the case. Page No.# 6/7

¶11The learned counsel for the respondents has also submitted that the total area in question consists of 1 bigha 1 katha 14 lechas and while only 1 katha of land was allotted to the appellant, it is in possession of 3 kathas of land and therefore, the apprehension of the dispossession of the respondents were based on materials on record.

¶12The rival submissions have been duly considered.

¶13The decree which was passed in Title Appeal No. 93/1979 on 11.03.1991 is exactly on the same subject matter of the present suit. There is nothing on record to show as to why the said decree was not put to execution within the time prescribed by law. The fault on the part of the present respondents in initiating an execution proceeding cannot be rectified by filing another suit that too, for the prayers which have already been mentioned.

¶14This Court is also of the opinion that apart from indulging in multiplicity of proceedings, an issue which was already adjudicated cannot be reopened for a fresh adjudication. Though the strict application of the doctrine of res judicata may not be applicable as the present appellant was not a party in the earlier suit, this Court is of the opinion that filing of a fresh suit could not have been done only to overcome the aspect of not initiating an execution proceeding qua the judgment and decree dated 11.03.1991 passed in Title Appeal No. 93/1979.

¶15This Court has also taken note of the submission of Shri Ghosh, learned Page No.# 7/7 counsel for the appellant that the demarcation has already been done and the appellant is in possession of the area allotted to them and the contesting respondents are also in possession of the land which was the subject matter of the suit.

¶16In view of the above, this Court is of the opinion that the appellant has made out a case for interference. Accordingly, the judgment and decree dated

23.06.2009 passed by the learned Civil Judge, Dhubri in Title Appeal No. 14/2007 upholding the judgment and decree dated 22.01.2007 passed by the learned Munsiff No. 3, Dhubri in Title Suit No.446/2002 is set aside. The substantial question of law as quoted above is accordingly answered in favour of the appellant and against the respondents.

¶17The instant appeal is allowed in the above terms.

¶18Send back the records.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010222482010 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/15/2010ooooooooo GAURIPURoCONSUMERSoCO-OPERATIVEoSTORES,o REPRESENTEDoBYoITSoSECY.o,oP.O.o/P.S.oGARURIPUR,oDIST.oDHUBRI,o ASSAM. VERSUSo ONoTHEoDEATHoOFoGAJANANDoPROSADoKANUoHISoLEGALoHEIRSoSMTIo BINDUoKANUoandoORSo SMTIoNILIMAoRAJLAXMIoKANUoSRIoAMITAVoRANJANoKANUoSRIo SUPRAKASHoKANU 1.1:SMTI.oBINDUoKANUo(WIFE) oR/O-oWARDoNO.o3 oGAURIPURoTOWN oP.O.oANDoP.S.-oGAURIPUR oDIST.-oDHUBRI oASSAM 1.2:SMTI.oNILIMAoRAJLAXMIoKANUo(D) oR/O-oWARDoNO.o3 oGAURIPURoTOWN oP.O.oANDoP.S.-oGAURIPUR oDIST.-oDHUBRI oASSAM 1.3:SRIoAMITABHoRANJANoKANUo(S) oR/O-oWARDoNO.o3 oGAURIPURoTOWN oP.O.oANDoP.S.-oGAURIPUR oDIST.-oDHUBRI oASSAM Page No.# 2/7 1.4:SRI SUPRAKASH KANU (S) R/O- WARD NO. 3 GAURIPUR TOWN P.O. AND P.S.- GAURIPUR DIST.- DHUBRI ASSAM 2:THE STATE OF ASSAM REPRESENTED BY SECY. TO THE GOVT. OF ASSAM REVENUE DEPTT. DISPUR GUWAHATI-6 3:THE DEPUTY COMMISSIONER CUM COLLECTOR DHUBRI. 4:THE SELECTION OFFICER DHUBRI Advocate for the Petitioner : MR.S K GHOSH Advocate for the Respondent : MR.H K HAZARIKA BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI For the Appellant : Shri SK Ghosh, Advocate. For the Respondents : Shri A Mobaraque, Advocate. Date of Hearing : 13.06.2024. Date of Judgment : 13.06.2024.