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2017 DIGILAW 1361 (GAU)

Samsul Hussain v. Riazul Hussain

2017-10-25

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S.S. Sharma, the learned Senior Counsel, assisted by Ms. M. Mazumdar, the learned Counsel appearing for the appellant as well as Mr. H.K. Deka, the learned Senior Counsel assisted by Mr. P. Choudhury , the learned Counsel appearing for the respondents. 2. This is an appeal under Order XLIII Rule 1(u) CPC against the judgment of remand dated 20.12.2007 passed by the learned Additional District Judge (FTC) No. 2, Kamrup, Guwahati in Title Appeal No.25/2005, by which the judgment and decree dated 30.08.2005, passed by the learned Civil Judge No.2, Kamrup, Guwahati in TS No. 150/97 was set aside and remanded back for fresh trial. 3. The appellant is the plaintiff in Title Suit No.150/97, which was decided by the judgment and decree dated 30.08.2005 passed by the learned Civil Judge (Senior Division) No.2, Kamrup, Guwahati. 4. The limited challenge in this appeal is the legality of the order of remand. Therefore, it is not required to burden this judgment with the entire pleading of the parties. It would be sufficient to mention that the appellant/plaintiff had filed the suit for declaration, for cancelation of various sale deeds and for recovery of possession and permanent injunction by projecting a case that his father Late Dilaur Hussain was the owner of land measuring 15 Bighas-4 Kathas-9 lechas and his sons namely Late Nazmul Hussain, Late Sadaron Hussain alias Sadarul Hussain, Late Karamat Hussain and Late Arif Hussain jointly co-owned and possessed the said land. The said land was not partitioned and all the 4 (four) brothers were pattadars in respect of equal shares over the said land. 5. It was also projected that out of all 4 brothers Late Nazmul Hussain and Late Karamat Hussain pre-deceased their brother without any issues and therefore remaining 2(two) brothers retained their shares and thereby became entitled to equal shares of 7 bighas-4 kathas-14½ lechas each. 6. After disposal of some portions of land as mentioned in the plaint, the father of the plaintiff, Late Sadarul Hussain is said to have retained land measuring 1 bigha-4 katha-6 lechas and an equal half was retained by his brother Arif Hussain. It was further claimed that upon the death of Sadarul Hussain, his share of land was divided among his 3 daughters and the plaintiff-son. It was further claimed that upon the death of Sadarul Hussain, his share of land was divided among his 3 daughters and the plaintiff-son. The plaintiff projected that on 23.07.1997, he found the defendant No.1 in possession of a part of the suit land. On being confronted, the defendant No.1 claimed that he had purchased that portion of land from Sadarul Hussain. Accordingly, on enquiry the plaintiff became aware of existence of Sale Deed No. 674/94 dated 14.02.1994 only on 30.07.1997 and only thereafter he had also come to know that the said land was sold by some fictitious person, perpetrating fraud upon the plaintiff and therefore, the said sale deed No. 674/94 as well as the subsequent sale deed by which the present respondent purchased the said land were put into challenge in the suit. 7. It would be pertinent to mention that the respondents were minors at the time of institution of suit and they were represented by their father. The written statement of the said minor defendants No. 1(b) and 1(c) were filed through their father. As per the contents of the judgment dated 30.08.2005, passed in the suit, the defendants No. 1(b) and 1(c) did not cross-examine the plaintiff’s witnesses and they also did not lead any evidence on their behalf. The learned Trial Court on perusal of the pleadings, framed 4 (four) issues and 4 additional issues. The additional issue No. 3 was further modified as revealed in the judgment. 8. Accepting the pleadings and evidence of the plaintiff, the issues framed by the learned trial court were decided in favor of the plaintiff/ appellant and the suit was decreed with cost by holding that the plaintiff was entitled to the right, title and interest over the said land, further holding the 3 (three) deeds mentioned therein were illegal, void and inoperative and that the same are liable to be cancelled, further holding the plaintiff was entitled to hold the khas possession of the suit land by evicting the defendants No.1(b) and 1(c) by removing their men, material etc. Also ordering issuance of precept to the Sub-Registrar, Kamrup, for the cancellation of the said sale deeds and further permanently restraining the defendant No.1, 1(a), 1(b), 1(c) from entering into the suit land. 9. Also ordering issuance of precept to the Sub-Registrar, Kamrup, for the cancellation of the said sale deeds and further permanently restraining the defendant No.1, 1(a), 1(b), 1(c) from entering into the suit land. 9. Aggrieved by the said judgment and decree the present respondents, who were the defendants No. 1(b) and 1(c) in the suit, preferred an appeal under section 96 CPC. Upon hearing the learned counsel for the parties the learned First Appellate Court arrived at a conclusion that the decree was required to be treated as an ex-parte decree and have been passed in the absence of the defendant without any evidence on their part being introduced. It was further held that the learned Trial Court did not ascertain the area of the land falling in the share of the plaintiff and therefore, it deemed that it was a fit case for remand and therefore the matter was remanded with a direction to the learned Trial Court to give ample opportunity to the parties to give evidence and after permitting necessary issues in light of the observation made in the Appellate judgment directing the learned Trial Court to dispose of the case in merit in accordance with the provision of law. The impugned judgment and decree passed by the learned Trial Court was set aside and quashed. 10. The learned First Appellate Court took up the point that the minor defendants No.1 (b) and 1(c) were not formally appointed by the learned Trial Court and held that although the learned Trial Court had not appointed a formal guardian for the minor defendants, but no prejudice was caused and therefore, the said plea of the respondents herein was not found to be of force. 11. In this appeal, the learned Senior counsel for the appellant has submitted that in the present case in hand the respondent herein did not cross-examine the PWs and did not give any evidence sufficient despite opportunity being granted by the learned Trial Court. 11. In this appeal, the learned Senior counsel for the appellant has submitted that in the present case in hand the respondent herein did not cross-examine the PWs and did not give any evidence sufficient despite opportunity being granted by the learned Trial Court. It is also submitted that as the father of the appellant had died in the year 1950 and, as such, the sale deeds executed in favor of the defendant No.1 was illegal and fraudulent and therefore, the specific sale deeds, based on the sale deed of defendant No.1 in favor of the defendants No.1(b) and 1(c) are also illegal and the same being made on 17.11.1997 which was during the pendency of the suit, such sale was hit by the provisions of section 52 of the Transfer of the Property Act, 1882, for which, the said sale deed dated 17.11.1997 was void ab-initio, illegal and without any authority of law. 12. It is submitted that as there was no cross-examination of the plaintiff’s witnesses and no evidence was lead by the respondent-defendant and, as such, in the absence of any evidence by the defendant on any issue, the respondent-defendant (i.e. the appellant before the learned First Appellate Court) was not entitled to press any of the issues which was raised before the learned First Appellate Court and therefore, it is submitted that the order of remand was not sustainable because by the said order, the parties were permitted to lead fresh evidence and therefore, the lacuna which had remained before the trial court would now be filled up by the respondent-defendant. 13. It is also submitted that the learned First Appellate Court committed the illegality in questioning the share and ownership of the suit land by the appellant/ plaintiff because not only all the co-sharers of the land was impleaded, but no evidence to the contrary was led by the present respondent to show that the plaintiff did not have a share in the suit land and therefore, the respondents had taken a calculated risk by not participating at the hearing of the suit at their own peril. 14. It is submitted that the order of remand was contrary to the law and force of the said order was liable to be set aside. 14. It is submitted that the order of remand was contrary to the law and force of the said order was liable to be set aside. It is further submitted that in the learned Trial Court the respondent did not prove any of the plea which was raised before the learned First Appellate Court and therefore, when the share of the appellant was not a subject matter of dispute, the order of remand cannot be sustained because no evidence can be allowed to be led without the foundation of any pleading on the issue sought to be raised for the first time in first appeal by questioning the ownership of the appellant/plaintiff over the suit land. 15. As the matter of abundant caution, the learned Senior Counsel for the appellant has made an alternative submission that if this Court is not inclined to interfere with the order of remand passed by the learned First Appellate Court, then a direction should be issued to prevent the parties from travelling beyond the case set up in the pleading as well as for a expeditious trial because the suit was of the year 1997, and this was the 20th year of institution of the suit. 16. Mr. S.S. Sharma, the learned Senior Counsel for the appellant had submitted that the respondent herein had applied under the provision of Order IX Rule 13 CPC for setting aside the ex-parte proceeding against the respondent, but the same was not pressed and I was also dismissed. Therefore, it is submitted that no prejudice has been caused to the respondent herein. It is submitted that as the respondents-defendants had entered appearance in the suit and had filed their written statement, there was no infirmity in the order passed by the learned trial court by treating the decree passed in the suit as an intra-party decree. So it is also submitted that instead of ordering remand, the Appellate Court ought to have decided the matter in appeal. 17. Per contra, the learned Senior Counsel for the respondent has submitted that for all intention purpose the decree which was passed by the learned trial Court was an ex-parte decree. So it is also submitted that instead of ordering remand, the Appellate Court ought to have decided the matter in appeal. 17. Per contra, the learned Senior Counsel for the respondent has submitted that for all intention purpose the decree which was passed by the learned trial Court was an ex-parte decree. He has referred to the provision of Order XVII Rule 2 CPC and Order XVII Rule 3 to project that as the defendant did not appear at the time of argument, it was incumbent on the learned Trial Court to revert back the provision of Order XVII Rule 2 and thereby the learned Trial Court was obliged to follow the procedure as prescribed in Order IX CPC. It is also submitted that the learned trial court by proceeding as if the trial was an intra-party trial, caused the present respondents to be deprived of the benefit of applying for setting aside the ex-parte decree under Order IX Rule 13 CPC. 18. The learned Senior Counsel for the respondents has further submitted that the respondents had erroneously filed a petition under Order IX Rule 13 CPC, which should have been filed as an application under Order XVII Rule 2 CPC. It is further submitted that as the right of the respondent under Order IX Rule 13 CPC was curtailed, the order of remand should be uphold because the respondent are not getting an opportunity to cross-examine the plaintiff witness and to led the evidence which would be for the interest of justice. On this issue the learned Senior Counsel for the respondent has relied on the case of Ramusa Khatoon Mustt. & others Vs. Durga Kakati, 2007 (1) GLT 886 to supplement his stand that this Court had deprecated the treating of an absent party as a present and laid down the ratio that in a case where an absent party was the defendant, the provision of Order XVII Rule 3(d) CPC would apply and under such circumstances, it was held that though the learned trial court had observed that the suit had been disposed of on contest, the fact remained that the decree granted was one under Order XVII Rule 2 CPC and the decree was an ex-parte decree which could have been interfered with under Order IX Rule 13 CPC. 19. 19. In support of impugned order of remand, the learned Senior counsel for the respondent has submitted that the appellant was a Mohammedan and therefore, when he admitted that he was the only son and had 3 (three) sisters, as per the principles of Mohammedan law, each sister became entitled to 1/5 share as a residuary and the appellant being was entitled to 2/5 share in respect of the inherited land. 20. It is further submitted that in view of the claim that the appellant was the owner of the 4 katha land was ex facie not sustainable and in view of the pleading of the plaintiff on record, the Trial Court was obliged to go into the question of share of the plaintiff and mainly because there was no objection by the present respondent, the Court ought to have taken note of the fact that the appellant could not have been the owner of 4 katha land under the Mohammedan law, as claimed. On the issue of the power of remand, reliance has been placed on the case of Narayanan Vs. Kumaran and others, (2004) 4 SCC 26 to project that the Second appellate Court only was required to address the order of remand without venturing to give any conclusion on the matters of facts and the Appellate also precluded from canvassing of facts. Reliance is also placed in the case of Smt. Koushalya Vs. State Bank of Bikaner and Jaipur, AIR 1999 Raj 259 wherein the Appellate Court had remanded the matter on the ground that the defendant did not get an opportunity for cross-examination of the witness of the plaintiff and to adduce evidence and it is submitted that the facts on those aspects is similar to the present case in hand. 21. It is submitted that the respondents were minor when the suit was filed. However, the learned trial court proceeded with the suit without formally appointing a guardian ad-litem. The learned Senior Counsel for the respondents has referred to the various provision contained in order XXXII CPC. Specifically relying on the provisions of Order XXXII Rule 3 CPC, it is submitted that it was the duty of the learned trial court to appoint a proper person as the guardian. The learned Senior Counsel for the respondents has referred to the various provision contained in order XXXII CPC. Specifically relying on the provisions of Order XXXII Rule 3 CPC, it is submitted that it was the duty of the learned trial court to appoint a proper person as the guardian. In this regard it may be pertinent to refer to the submissions made by the learned Senior Counsel for the appellant that when the respondents-defendant were duly represented by the father and natural guardian, who had filed the written statement to contest the suit on behalf of the said minors, under the circumstances there was no necessity for the learned trial court to remove the father and natural guardian and to appoint a court nominated guardian ad-litem and it was forcefully submitted that merely because there was a provision in the CPC for appointment of a guardian, it is not mandatory for Trial Court to appoint a guardian ad-litem when the natural father is duly representing the minor respondents-defendants. 22. It is also submitted by the learned Senior Counsel for the respondents that the order of remand was in accordance with the law because the learned First Appellate Court was entitled to go into the facts as the last Court of facts and it is further submitted that the said order of remand may not be interfered with by this Court, otherwise it would have the effect of preventing the respondent from giving evidence in the trial of the case. 23. Having heard the learned Senior Counsels for both sides, perused the materials on record of trial case record, which had been called for. 24. This appeal was admitted by order dated 19.05.2008, for hearing on the following substantial question of law-“1.Whether the plaintiff in the absence of any dispute to his title in respect of Schedule A land by right of inheritance is again required to prove his title over the Schedule A land, which was the ground on which the learned first Appellate Court has set aside the decree passed by the learned Trial Court and remanded the case for retrial?” 25. At the outset, this Court deems fit to refer to the case of Narayanan (supra), which was relied upon by the learned Senior Counsel for the respondents. Para-17 thereof is quoted below:- “17. At the outset, this Court deems fit to refer to the case of Narayanan (supra), which was relied upon by the learned Senior Counsel for the respondents. Para-17 thereof is quoted below:- “17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in making an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court." 26. In view of the aforesaid ratio of the case of Narayanan (supra), this Court is required to confine itself to answer the aforesaid substantial question of law as aforesaid. 27. The plaintiff Shamsul Hussain had impleaded as many as 23 defendants in the suit [defendants No.1, 1(A), 1(B), 1(C) and 2 to 20], seeking declaration of his right, title and interest over the suit land and for evicting defendants No.1-B and 1-C, who are the respondents herein. The defendants No.1-B and 1-C were stated to be minors and as per the cause title of the plaint, they were stated to be represented by their father and natural guardian, namely, Abdul Rouf. The defendants No.1-B and 1-C were stated to be minors and as per the cause title of the plaint, they were stated to be represented by their father and natural guardian, namely, Abdul Rouf. In the plaint, it is seen that not only it contains a detailed statement to show how the suit land had devolved on the plaintiff, but in paragraph 21(a), the plaintiff has also referred to Mohammedan law regarding inheritance and succession and has provided the calculation how his share of land comes to 4 katha 4 lechas. The amended plaint was filed on 01.04.2002. The Defendants No.1-B and 1-C defended the suit by filing their written statement through their father on 30.05.2002. The learned trial court had framed as many as 4 issues and 4 additional issues. The plaintiff had examined 2 (two) witnesses including himself as PW-1 and exhibited 17 documents. However, as stated herein before, the defendants No.1-B and 1-C did not cross-examine the PWs and did not tender their evidence. 28. In the present case in hand, in paragraph 11 of the written statement, the defendants No.1-B and 1-C gave the following reply in respect of statements made in paragraph 21(a) of the plaint–“The answering defendants deny the averments made in the paragraphs 20 and 21(A) of the plaint and the plaintiff is put to prove the said averments.” The effect of not making a specific denial makes the averment to be admitted by operation of the provisions of Order VIII Rule 5(1) CPC. However, in the present case in hand, the learned trial court did not accept the statements made in paragraph 21(A) of the plaint on admission, but framed Issue No.1 to the effect that–“Whether the plaintiff had acquired the Schedule-A land by right of inheritance?” and required the plaintiff to prove the said issue, which is permissible in terms of Order VII Rule 5 CPC. In this regard, it appears to be a well settled law that in the absence of pleadings, there was no lis between the parties on the question and the Court could not have gone into the same even if some evidence was adduced. If one needs an authority on the said proposition, the case of Rajgopal (Dead) by LRs Vs. Kishan Gopal & Anr., (2003) 10 SCC 653 (para-9) may be referred to. 29. If one needs an authority on the said proposition, the case of Rajgopal (Dead) by LRs Vs. Kishan Gopal & Anr., (2003) 10 SCC 653 (para-9) may be referred to. 29. This leads to a corollary issue as to whether on failure of the defendants No.1(B) and 1(C) to cross-examine the plaintiff’s witnesses and to adduce his/her own witness, it was justified for the learned first appellate court to set aside the judgment of the learned trial court and to remand the matter back to the learned trial Court for a fresh trial. In this regard, on the perusal of the first appellant judgment, it appears that the learned first appellate court had remanded the matter back to the trial court on the ground that the learned trial court did not ascertain as to the area of share of the plaintiff in the suit dag during trial. In this connection, the learned first appellate court did not discuss the pleadings made in paragraph 7, 8, 9 and 21(A) of the plaint or the evidence of the two PWs, whereby the plaintiff-appellant had explained and asserted how he derived right, title, and interest in respect of Schedule-A land. The learned first appellate court also failed to take note of the fact that the surviving legal heirs of plaintiff’s father and all pattadars were arrayed as defendants in the suit and, as such, in the absence of any objection from any of the other successors of Late Sadaron Hussain or any other co-pattadars of the concerned patta, the learned first appellate court could not have any reason to doubt that the plaintiff was not the owner of the suit land so as to totally discard the ex-parte evidence of the plaintiff’s side by remanding the suit for a fresh trial. Hence, this court is of the considered opinion that the order of remand cannot be justified. 30. The point raised by the learned Senior Counsel for the respondent as to whether the judgment by the learned trial court was intra-party or an ex-parte judgment is now taken up. In the case of Ramusa Khatoon Mustt. Hence, this court is of the considered opinion that the order of remand cannot be justified. 30. The point raised by the learned Senior Counsel for the respondent as to whether the judgment by the learned trial court was intra-party or an ex-parte judgment is now taken up. In the case of Ramusa Khatoon Mustt. & others (supra), which is relied upon by the learned Senior Counsel for the respondent, this Court had deprecated the treating of an absent party as a present and had laid down the ratio that in a case where an absent party was the defendant, the provision of Order XVII Rule 3(d) CPC would apply, and under such circumstances, the decree was one under Order XVII Rule 2 CPC and the decree was an ex-parte decree which could have been interfered with under Order IX Rule 13 CPC. The said ratio is the correct appreciation of the law on the point and this Court has no reason not to follow it. The judgment and decree passed by the learned trial court is deemed to be an ex parte judgment and decree in view of the ratio of the case of Ramusa Khatoon Mustt. & others (supra). 31. The next issue is whether the defendants No.1(B) and 1(C) have suffered any prejudice because the learned trial court had treated the judgment to be an intra-party judgment and not an ex parte judgment or whether the respondents i.e. defendants No.1(B) and 1(C) suffered any prejudice for not being able to avail an opportunity to get the ex parte judgment vacated under Order IX Rule 13 CPC, as argued by the learned Senior Counsel for the respondent. In this case, on the perusal of the trial court records, it appears from the order sheet that the case was fixed on 02.05.2005 for argument, but the learned counsel appearing for the defendants No.1(B) and 1(C), by filing petition No. 1395/05 prayed for allowing them to cross-examine the PWs. The learned trial court has recorded in the order dated 02.05.2005 that none appeared for the said defendant and further no ground had been assigned in the petition for allowing the said defendants to cross-examine the PWs and adduce evidence on their behalf and, as such, the said petition was rejected and the suit was fixed on 01.07.2005 for argument. The learned trial court has recorded in the order dated 02.05.2005 that none appeared for the said defendant and further no ground had been assigned in the petition for allowing the said defendants to cross-examine the PWs and adduce evidence on their behalf and, as such, the said petition was rejected and the suit was fixed on 01.07.2005 for argument. On the said date i.e. on 01.07.2005 also, the defendants No.1(B) and 1(C) had filed petition No. 2163/05, which was an application under Order IX Rule 13 read with section 151 CPC, containing prayer to set aside the order for ex parte hearing and to allow the defendants No.1(B) and 1(C) to cross examine PWs and to adduce evidence in the suit. The learned trial court by assigning reasons, had rejected the said petition. The said order was allowed to attain finality and no appeal or revision was preferred against the said order dated 01.07.2005. Hence, in the considered opinion of this Court, the defendants No.1(B) and 1(C) are not found to have suffered any prejudice because the learned trial court had treated the judgment to be an intra-party judgment and that the defendants No.1(B) and 1(C) is also not found to have suffered any prejudice because the said defendants is found to have availed an opportunity to pray to vacate the ex parte judgment vacated under Order IX Rule 13 CPC by filing petition No. 2163/05 dated 01.07.2005. Hence, the case of Smt. Koushalya (supra) is found to be distinguishable on the facts of the present case in hand. 32. The other issue raised by the learned Senior Counsel for the respondent relates to appointment of guardian ad-litem. In this regard, it is seen from the trial court record that the plaintiff had filed a petition under Order XXXII Rule 3 read with section 151 CPC, which was numbered as Petition No. 570/03 dated 21.03.2003. However, the learned trial court merely recorded in the order dated 21.03.2003 that the minor defendants No.1(B) and 1(C) were represented by their father and natural guardian and no orders were passed on the said Petition No. 570/03 dated 21.03.2003. The father and natural guardian is found to be taking steps in the interest of the defendants No.1(B) and 1(C) till the last moment by filing petition No. 2163/05 dated 01.07.2005. The father and natural guardian is found to be taking steps in the interest of the defendants No.1(B) and 1(C) till the last moment by filing petition No. 2163/05 dated 01.07.2005. The respondents i.e. the defendants No.1(B) and 1(C) had filed Title Appeal No. 25/2005 through their father and natural guardian and they have also entered appearance before this Court through their father and natural guardian by filing vakalatnama on 11.11.2008. However, the respondents i.e. the defendants No.1(B) and 1(C) have not filed any affidavit/ application to inform this Court whether they have attained majority. Hence, for all practical purposes, the respondents i.e. the defendants No.1(B) and 1(C) continue to be deemed to be minors, and duly represented by Abdul Rouf, their father and natural guardian. Thus, there appears to be no conflict of interest between the father and the respondents as the interest of the said minors appear to be well looked after by their father and natural guardian till date. Hence, this issue is decided by holding that as the defendants No.1(B) and 1(C) are being duly represented by their father and natural guardian, there was no necessity for the learned trial court to suo motu appoint a guardian ad-litem by disentitling the father and natural guardian to continue to represent the said defendants No.1(B) and 1(C). There appears to be no force in the argument advanced on the point by the learned Senior Counsel for the respondents/ Defendants No.1(B) and 1(C). 33. In view of the discussions in paragraphs 27 to 29 above, this Court is of the view that there was no dispute with regard to the right, title, and interest of the plaintiff in respect of the Schedule-A land by right of inheritance, and moreover, the suit land was purchased by the defendants No.1(B) and 1(C) vide Sale Deed No. 7287/2000 dated 29.09.2000, during the pendency of the suit and, as such, the said sale deed in favour of the defendants No.1(B) and 1(C) are hit by the principles of lis pendens under Section 52 of the Transfer of Property Act, 1882 and, as such, the plaintiff-appellant is not required to once again prove his right, title and interest in respect of the suit land described in Schedule-A of the plaint and, as such, the re-trial of the suit is not warranted in any view of the matter. Hence, the substantial question of law as formulated by this Court is answered in the negative and in favour of the appellant. 34. Resultantly, the judgment of remand dated 20.12.2007 passed by the learned Additional District Judge (FTC) No. 2, Kamrup, Guwahati in Title Appeal No.25/2005 is hereby set aside. The judgment and decree dated 30.08.2005, passed by the learned Civil Judge No.2, Kamrup, Guwahati in TS No. 150/97 stands upheld. The proceeding of Title Appeal No. 25/2005 is restored to the file of the learned Court of the Additional District Judge (FTC) No. 2, Kamrup, Guwahati, for deciding the appeal afresh on merit. 35. The parties are left to bear their own cost. 36. Let the LCR be returned back to the learned Court of the Additional District Judge (FTC) No. 2, Kamrup, Guwahati.