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2017 DIGILAW 985 (GAU)

DILIP KR. DAS v. MUSTT. AJUFA BEGUM BIBI @ AJUPA

2017-07-26

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. R.C. Das, the learned counsel for the petitioners, Mrs. R. Choudhury, the learned counsel appearing for the respondents No.1 to 3 and Mr. S.P. Choudhury, the learned State Counsel appearing for the respondents No.4 to 7. 2. From the copy of the judgment dated 23.12.1987, passed by the learned Assistant District Judge, Dhubri, in T.S. No. 32/1983, the Respondents No.1 and 2 are the plaintiffs in TS No. 32/1983. The suit was for declaration and cancellation of sale deed, and 19 persons were arrayed as Defendants. The suit was decreed as under – It is declared – (i) That the plaintiffs along with the Defendants No.1 and 2 have right, title, interest over the suit properties, as described in Schedules-A and B, and (ii) That the plaintiffs are entitled to get 7/16th share each in the suit properties, and (iii) That the defendants No.1 and 2 have sold more than their shares in the suit property and as such sale deeds are not binding on the plaintiffs. It is also directed that decree be sent to the Collector, Dhubri for making partition of the suit properties amongst the plaintiffs and defendants No.1 and 2 according to their shares (Plaintiffs 7/16th each and the defendants 1/16th each) as specifically determined in para-8 above under Issue No.8. 3. The present petitioners are the legal representatives of Dinesh Chandra Das, who was arrayed as Defendant No.15.Some piece and parcel of land were sold by the defendant No.1 to the defendant No.15. Being aggrieved by the said judgment and decree passed by the learned trial court, he preferred an appeal before the Court of Additional District Judge, Dhubri, which was numbered as T.A. No. 9/1994. By first appellate judgment and decree dated 06.04.1995, the appeal of the petitioner’s predecessor- in- interest was allowed and decreed and his land covered by Dag No. 140, Khatian No. 78 purchased from defendants No.1 and 2 was ordered to stand excluded from partition. By first appellate judgment and decree dated 06.04.1995, the appeal of the petitioner’s predecessor- in- interest was allowed and decreed and his land covered by Dag No. 140, Khatian No. 78 purchased from defendants No.1 and 2 was ordered to stand excluded from partition. The plaintiffs assailed the same by filing second appeal, which was numbered as S.A. No. 101/95 and this court, by judgment dated 11.01.2001, allowed the appeal by setting aside that part of the first appellate judgment by which the land of the petitioner’s predecessor- in- interest (Dinesh Chandra Das), covered by Dag No. 140, Khatian No. 78 purchased from defendants No.1 and 2 was ordered to stand excluded from partition. 4. The grievance of the petitioners is that after bifurcation of Dhubri District, one part of the decreetal land is within the District of Dhubri and one part of the land now falls within the District of Kokrajhar. It is alleged that despite reminders, the report from the Collector, Kokrajhar has not been received and, as such, the petitioners, who are the legal representatives of defendant No.15 is being compelled to endure the proceedings of T.Ex. Case No. 2/2002. It is projected that the petitioners had filed Misc. (J) Case No. 59/2016 before the learned executing court for certain reliefs. In this present application filed under Article 227 of the Constitution of India, the petitioners have prayed for a direction to the learned executing court for early disposal of Misc. (J) Case No. 59/2016. 5. In support of the present application, the petitioners have filed an additional affidavit on 22.02.2017 and thereafter, they have also filed a second additional affidavit on 21.07.2017. Mr. Ratan Chandra Das, Advocate, who is the petitioner No.6 herein has preferred to argue in person. He also appears as the counsel engaged by the remaining other 5 petitioners, who are all his brothers. He has argued at length, taking this court to almost each and every document filed by him. At this stage, it is not deemed necessary to burden this order with his lengthy arguments. 6. Per contra, the learned Counsel for the respondents No.1 to 3 has advanced a short and summarized argument by submitting that the learned executing court, by order dated 04.02.2017, which is annexed as Annexure-1 to the additional affidavit filed by the petitioners on 22.02.2017, whereby the said learned court allowed the Misc. 6. Per contra, the learned Counsel for the respondents No.1 to 3 has advanced a short and summarized argument by submitting that the learned executing court, by order dated 04.02.2017, which is annexed as Annexure-1 to the additional affidavit filed by the petitioners on 22.02.2017, whereby the said learned court allowed the Misc. (J) Case No. 59/2016, by permitting the legal representatives of Late Dinesh Chandra Das to renovate or undertake construction over the 10 lessas land in their possession at their own risk and cost and the decree holders or their men and agents were temporarily restrained from obstructing the present applicants (i.e. petitioners herein) from undertaking any construction over the said land till final partition is affected. The same point is also argued by the learned State Counsel appearing for the respondents No.4 to 7. 7. In that view of the matter, as it is seen that the Misc. (J) Case No. 59/2016 has been disposed of by order dated 04.02.2017, this present application is held to have become infructuous. Hence, it is dismissed. 8. At this stage, the petitioners’ side has referred to the following case citations as mentioned below. However, in view of the discussion above, the said cases are not found to be of any assistance to the petitioner under the facts and circumstances of this case. The cases are: (i) K.P. Ranga Rao vs. K.V. Venkatesham & Ors., (2015) 13 SCC 514 , (ii) Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Another, (2005) 7 SCC 791 , (iii) Ouseph Mathai & Ors. vs. M. Abdul Khadir, (2002) 1 SCC 319 , (iv) Pathumma and Ors. vs. Kuntalan Kutty & Ors., (1981) 3 SCC 589 , (v) Mannappa Manikappa Sheded & Ors. vs. Bhaskhrappa A Bhasana & Ors., AIR 1978 Karnataka 113, (vi) Keshav Deo Tulshan vs. Jagadish Prasad Tulsha, AIR 1973 Calcutta 83 and (vii) In the matter of District Judge, Puri (Petitioner), AIR 1971 Orissa 89. 9. Before parting with the records, it is deemed fit to record appreciation for Mrs. R. Choudhury, the learned counsel for the respondents No.1 to 3, who had intervened in the midst of the argument of the petitioners’ side to point out about the disposal of the said misc. case and thus, prevented this court from hearing further unnecessary arguments from the petitioners’ side. R. Choudhury, the learned counsel for the respondents No.1 to 3, who had intervened in the midst of the argument of the petitioners’ side to point out about the disposal of the said misc. case and thus, prevented this court from hearing further unnecessary arguments from the petitioners’ side. As the petitioner No.6, who had argued in person, is a practicing Advocate, I leave it to his wisdom to ponder on the point whether it was proper for him to argue at such a length on an otherwise infructuous matter.