Gauhati High Court
Page No.# 1/39 vs On The Death Of Satish Chandra Sarma on 21 August, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/39
GAHC010210302014
2025:GAU-AS:11179
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/79/2014
LALIT KALITA
S/O LATE KALICHARAN KALITA R/ VILL. RAHADHAR BIRKALA, P.O.
PATHSALA, MOUZA UTTAR BAJALI, IN THE DIST. OF BARPETA, PIN
781325, ASSAM.
VERSUS
ON THE DEATH OF SATISH CHANDRA SARMA, HIS LEGAL HEIRS SMTI
GAYATRI DEVI and ORS,
W/O LATE SATISH CHANDRA SARMA
1.2:ON THE DEATH OF RESPONDENT NO 2
HEMEN SARMA
HIS LEGAL HEIRS
Represented by-
1.2.1:SMTI BHARATI DEVI
W/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.2:SRI JAJATI SARMA
S/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
Page No.# 2/39
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.3:SMTI SUKANYA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.4:SMTI SUBARNA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.5:MS. NAMRATA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.3:KABINDRA NATH SARMA
S/O LT. SATISH CH. SARMA
1.4:PRABIN SARMA
S/O LT. SATISH CH. SARMA
1.5:HAREKRISHNA SARMA
S/O LATE SATISH CH. SARMA
1.6:SMTI HEMANTI DEVI
D/O LT. SATISH CH. SARMA
W/O SRI DINESH CH. SARMA
NO. 1 A TO 1 E ARE RESIDENTS OF AMBARIHATI
Page No.# 3/39
TARUNRAM PHUKAN ROAD
BARPETA
PIN 781301
DIST. BARPETA
ASSAM. NO. 1 F IS A RESIDENT OF VILL. MADHOPUR
P.O. ARIKUCHI
DIST. BARPETA
PIN 781301
ASSAM.
2.1:RABIN SARMA
S/O LATE DEBEN SARMA
2.2:AMAR SARMA
S/O LATE DEBEN SARMA
R/O HOUSE NO. 2
COLLEGE ROAD
SHATIPUR
GUWAHATI 781009
ASSAM.
3:SMTI SATYABATI SARMA
W/O LT. NAGEN SARMA
R/O AMBARIHATI
NEAR TARUNRAM PHUKAN HALL
BARPETA
PIN 781301
ASSAM.
4:HITENDRA NATH SARMA
S/O LATE NAGEN SARMA
R/O HATIGAON
GUWAHATI 781006
5:ABANI SARMA
S/O LATE NAGEN SARMA
R/O AMBARIHATI
BARPETA
PIN 781301
ASSAM.
6:SMTI. DIPALI SARMA
Page No.# 4/39
D/O LT. MAHENDRA NATH SARMA
W/O SRI TARUN SARMA
R/O VILL. PATACHARKUCHI
BHALUKI PATH
NEAR SHIV MANDIR
PIN 781326
BARPETA
ASSAM.
7:JOGENDRA NATH SARMA
S/O LT. SURENDRA NATH SARMA
R/O J.B. LAW COLLEGE CAMPUS. R.G. BARUAH ROAD
CHANDMARI
GUWAHATI 781003
ASSAM.
8:BALINDRA NATH SARMA
S/O LT. SURENDRA NATH SARMA
R/O HOUSE NO. 45
NEW SARANIA
HILL SIDE
GANDHIBASTI
BYE LANE NO. 1A
GUWAHATI 78100
Advocate for the Petitioner : N UPADHYAY, MR.P BORAH,C DAS,B KALITA,MR.D
MOZUMDER,K K DAS,A DHAR
Advocate for the Respondent : FOR CAVEATOR, MR H MAZUMDER (r-
1.2.3,1.2.4,1.2.5,1.2.2,2.2.1),MR. N BORAH (r-1.2.3,1.2.4,1.2.5,1.2.2,2.2.1),MR H MAZUMDER (R9,
R10, R11),MR. N BORAH (R9, R10, R11),,B N SARMA,G SARMA,H K DEKA,D DAS,B DEKA
Linked Case : RSA/80/2014
LABANYA KUMAR DAS
S/O LATE GUNESWAR DAS
R/O VILL. RAIPUR
MOUZA SARIHA
IN THE DIST OF BARPETA
PIN 781325
ASSAM.
Page No.# 5/39
VERSUS
ON THE DEATH OF SATISH CHANDRA SARMA
HIS LEGAL HEIRS SMTI GAYATRI DEVI and ORS
W/O LATE SATISH CH. SARMA
1.2:ON THE DEATH OF RESPONDENT NO 2
HEMEN SARMA
HIS LEGAL HEIRS
Represented By
1.2.1:SMTI BHARATI DEVI
W/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.2:SRI JAJATI SARMA
S/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.3:SMTI SUKANYA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.4:SMTI SUBARNA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
Page No.# 6/39
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.2.5:MS. NAMRATA DEVI
D/O LATE HOMEN SARMA
R/O BORVILLA KUTIR
AMOLAPATTY
TARUN RAM PHUKAN ROAD
P.O. BARPETA TOWN
DISTRICT BARPETA
PIN 781301
ASSAM
1.3:KABINDRA NATH SARMA
S/O LT. SATISH CH. SARMA
1.4:PRABIN SARMA
S/O LT. SATISH CH. SARMA
1.5:HAREKRISHNA SARMA
S/O LATE SATISH CH. SARMA
1.6:SMTI HEMANTI DEVI
D/O LT. SATISH CH. SARMA
W/O SRI DINESH CH. SARMA
NO. 1 A TO 1 E ARE RESIDENTS OF AMBARIHATI
TARUNRAM PHUKAN ROAD
BARPETA
PIN 781301
DIST. BARPETA
ASSAM. NO. 1 F IS A RESIDENT OF VILL. MADHOPUR
P.O. ARIKUCHI
DIST. BARPETA
PIN 781301
ASSAM.
2.1:RABIN SARMA
S/O LATE DEBEN SARMA
2.2:AMAR SARMA
S/O LATE DEBEN SARMA
R/O HOUSE NO. 2
Page No.# 7/39
COLLEGE ROAD
SHATIPUR
GUWAHATI 781009
ASSAM.
3:SMTI SATYABATI SARMA
W/O LT. NAGEN SARMA
R/O AMBARIHATI
NEAR TARUNRAM PHUKAN HALL
BARPETA
PIN 781301
ASSAM.
4:HITENDRA NATH SARMA
S/O LATE NAGEN SARMA
R/O HATIGAON
GUWAHATI 781006
5:ABANI SARMA
S/O LATE NAGEN SARMA
R/O AMBARIHATI
BARPETA
PIN 781301
ASSAM.
6:SMTI. DIPALI SARMA
D/O LT. MAHENDRA NATH SARMA
W/O SRI TARUN SARMA
R/O VILL. PATACHARKUCHI
BHALUKI PATH
NEAR SHIV MANDIR
PIN 781326
BARPETA
ASSAM.
7:JOGENDRA NATH SARMA
S/O LT. SURENDRA NATH SARMA
R/O J.B. LAW COLLEGE CAMPUS. R.G. BARUAH ROAD
CHANDMARI
GUWAHATI 781003
ASSAM.
8:BALINDRA NATH SARMA
Page No.# 8/39
S/O LT. SURENDRA NATH SARMA
R/O HOUSE NO. 45
NEW SARANIA
HILL SIDE
GANDHIBASTI
BYE LANE NO. 1A
GUWAHATI 781003
------------
For the Appellant(s) : Mr. A. Dhar, Advocate
For the Respondent(s) : Mr. B.D. Deka, Advocate
Mr. B.N. Sarma, Advocate
Mr. N. Borah, Advocate
Date of Hearing : 20.05.2025
Date of Judgment : 21.08.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (CAV)
Heard Mr. A. Dhar, the learned counsel appearing on behalf of
the appellants in both the Appeals being RSA No. 79/2014 and
RSA No. 80/2014. I have also heard Mr. B.D. Deka, the learned
counsel; Mr. B.N. Sarma, the respondent-in-person and Mr. N.
Borah, the learned counsel representing the respondents in both
the Appeals.
2. Taking into account that the issues involved in both the Appeals
and the substantial questions of law so formulated by this Court in
both the Appeals are the same and further this Court having heard
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both the Appeals together, both the Appeals are taken up for disposal
by this common judgment and order.
3. The records reveal that vide an order dated 12.07.2016,
commonly passed for both the Appeals, the Appeals were admitted by
formulating 4 (four) substantial questions of law. The same being
relevant are reproduced herein under:
” 1. Whether an occupancy tenant under the Assam (Temporarily Settled Areas)
Tenancy Act, 1971 whose name is duly entered in the Khatian Patta can be ejected
from the land under his occupation dehors the provisions prescribed by the Section
51 of the said Act, 1971?
2. Whether the Civil Court is vested with the jurisdiction to nullify the entries
made in the records of rights and in the matter of maintenance of records of rights
notwithstanding the bar imposed under Section 66 of the Assam (Temporarily
Settled Areas) Tenancy Act, 1971?
3. Whether under the Assam (Temporarily Settled Areas) Tenancy Act, 1971,
an occupancy tenant enjoys a permanent, heritable and transferable rights and
use of occupancy in the land of his holding?
4. Whether in the absence of any contrary evidence available on records, the
Court is obliged to draw presumption in respect of correctness of the entries made
in the revenue records maintained by the revenue authority?”
4. It further transpires from the records that on 09.08.2022, this
Court framed an additional substantial question of law in both the
Appeals, which reads as under:
“In RSA No. 79/2014
Page No.# 10/39
Whether the suit was maintainable without the State of Assam or the authority
granting ownership to the defendant vide the order dated 09.05.2023 in TR Case
No. 2/2002-2003, made a party in the suit?
In RSA No. 80/2014
Whether the suit was maintainable without the State of Assam or the authority
granting ownership to the defendant vide the order dated 09.05.2023 in TR Case
No. 1/2002-2003, made a party in the suit?”
5. The question arises for this Court to adjudicate is, as to whether,
the substantial questions of law so formulated as noted above by this
Court in terms with Section 100(4) of the Code of Civil Procedure,
1908 (for short, “the Code”) are involved in the instant Appeals.
6. For deciding the same, this Court finds it pertinent to take note of
the brief facts which led to the filing of both the Appeals before this
Court.
RSA No. 79/2014
7. One Sarbananda (since deceased) was the predecessor-in-
interest of the plaintiffs in Title Suit No. 07/2008. The name of late
Sarbananda was included in the re-settlement operation of 1958-65 in
respect to the suit land specifically described in Schedule ‘A’ to the
plaint. Upon the death of late Sarbananda, his 4 (four) sons namely
Harendra Nath Sarma, Surendra Nath Sarma Mahendra Nath Sharma
and Satish Chandra Sarma being the heirs of late Sarbananda,
Page No.# 11/39
inherited the land as described in Schedule ‘A’ to the plaint which
admeasured 21 Bighas 2 Kathas 15 Lechas. The names of the 4 (four)
sons referred to above were recorded in the revenue record as
Pattadars by right of succession and inheritance on 24.04.1968. 3
(Three) of the sons of late Sarbananda, i.e., late Harendra Nath
Sarma, late Sunrendra Nath Sarma and late Mahendra Nath Sarma
expired leaving behind their legal heirs who are the plaintiff Nos. 2 to
7 and the proforma defendant Nos. 6 to 8. It is also mentioned in the
plaint that out of the land so described in Schedule ‘A’, 3 Bighas of
land were sold and the remaining land admeasuring 18 Bighas 2
Kathas 15 Lechas was specifically described in Schedule ‘B’ to the
plaint. The proforma defendant Nos. 1 to 5 in the plaint were sold the
3 Bighas of land also remained in possession of their respective land
peacefully and amicably and the plaintiffs and the proforma defendant
Nos. 6 to 8 have no dispute with the proforma defendant Nos. 1 to 5.
8. It is the further case of the plaintiffs that out of the Schedule ‘B’
land, the principal defendants had kept a part of the Schedule ‘B’ land
admeasuring 9 Bighas 1 katha 7½ Lechas under their occupation and
the said land have been more specifically described in Schedule ‘C’ to
the plaint. It is also stated in the plaint that apart from the land so
described in Schedule ‘B’, the plaintiffs and the proforma defendants
Nos. 6 to 8 had another plot of land admeasuring 5 Bighas 3 Kathas
covered by Dag No. 48 under Nisfi-Kheraj Patta No. 47 at Village
Page No.# 12/39
Raipur which have been described in Schedule ‘D’ to the plaint.
9. It is the further case of the plaintiffs that on 27.02.2003 when
the plaintiff No. 1 went to have a look at the plaintiffs land in
Schedule ‘B’ and Schedule ‘D’ for making a partition amongst the
plaintiffs and the proforma defendant Nos. 6 to 8, he was shocked to
learn that the defendants trespassed into the suit land and were
working in the suit land in Schedule ‘C’ and Schedule ‘D’. On being
inquired, it was informed to the plaintiff No. 1 by the defendants that
they had entry of their names in the tenancy records as tenants. It
was further informed that in respect to the Schedule ‘B’ and Schedule
‘D’ land, the defendants have been granted Khatian.
10. On 12.03.2003, the plaintiff No. 1 received one notice from the
Additional Deputy Commissioner, Barpeta in connection with T.R. Case
No. 2/2002-03, requiring him to appear and submit objection on
28.03.2003 against granting ownership right to the defendants upon
the suit land. The plaintiff No. 1 appeared on 28.03.2003 before the
Additional Deputy Commissioner, Barpeta and on going through the
records came to learn that a part of 3 Bighas 3 Kathas from the land
in Schedule ‘B’ was shown as partitioned and placed under new Dag
No. 903 secretly, illegally and without the knowledge or without any
notice to any one of the plaintiffs or the proforma defendant Nos. 6 to
8. It was also stated in the plaint that the case records also disclosed
Page No.# 13/39
the name of the defendants as tenants under the plaintiff. It is the
specific case of the plaintiffs that all these steps were being taken by
the defendants without any notice being issued to the plaintiffs and
the proforma defendant Nos. 6 to 8. The plaintiffs were further
shocked to learn that the Additional Deputy Commissioner, Barpeta
passed an order on 09.05.2003 thereby granting ownership rights in
favour of the defendants over unspecified parts of land in Schedule ‘B’
admeasuring 10 Bighas 2 Kathas 3 Lechas describing it as covered by
fictitious Dag No. 3 and 903 and an unspecified part of the land in
Schedule ‘D’ admeasuring 4 Kathas describing it as covered by
fictitious Dag No. 1031 in favour of the defendants. The said order as
per the plaintiffs was passed behind the back of the plaintiff Nos. 2 to
7 and the proforma defendant Nos. 6 to 8 keeping them at dark about
the case and in gross violation to the principles of natural justice.
11. On 17.06.2003, the plaintiff No. 1 who went to the office of the
Circle Officer, Patacharkuchi to obtain certified copy of the Chitha of
the suit land, but for reasons best known, the Circle Officer refused to
provide the certified copy of the Chitha saying that in the present
days certified copies were not being issued by the Revenue Circles.
However, the plaintiff No. 1 managed to look at the Chitha book and
the revenue map of the suit land wherefrom the plaintiff came to
learn that Dag No. 3 under K.P. Patta No. 218 of Village Raipur still
contains 21 Bighas 2 Kathas 15 Lechas in the Chitha Book as well as
Page No.# 14/39
the revenue map maintained with the Circle and that no part of 21
Bighas 2 Kathas 15 Lechas have been partitioned and placed under
any separate Dag and Patta number. It is the specific case of the
plaintiffs that neither the defendants nor their predecessor/transferor-
in-interest were tenants in the suit land under the plaintiffs or the
proforma defendant Nos. 6 to 8 at any point of time and as such, the
question of issuance of any Khatian in favour of the said defendants
as well as issuance of ownership upon the defendants vide the order
dated 09.05.2003 in T.R. Case No. 2/2002-03 were ultra vires, illegal,
fraudulent and inoperative in law and not binding upon the plaintiffs.
It is the specific case of the plaintiffs that on 27.02.2003, the
defendants being encouraged by the grant of Khatian had
dispossessed the plaintiffs from the suit land.
12. On the basis of the above, the suit was filed being Title Suit No.
07/2008 seeking declaratory decree that the plaintiffs have right, title
and interest over the suit land; that the defendant Nos. 1 and 2 nor
their predecessor/transferor-in-interest were tenants in respect to the
suit land under the plaintiffs or proforma defendant Nos. 6 to 8 at any
point of time; for a decree declaring that the grant of ownership right
by the Additional Deputy Commissioner, Barpeta to the defendants
vide order dated 09.05.2003 in T.R. Case No. 2/2002-03 and also the
entry of the name of the defendants as tenants in any revenue
records as claimed by the defendants are ultra vires, illegal, fradulent
Page No.# 15/39
and inoperative in law and not binding upon the plaintiffs; for a
decree to deliver Khas possession of the suit land in favour of the
plaintiffs by evicting the defendants etc.
13. The defendants filed their written statement wherein various
pleas were taken as regards the maintainability of the suit. At
paragraph No. 6 of the written statement, it was mentioned that the
suit is bad for non-joinder of necessary parties. However, there was
no mention made, as to who is/are the necessary parties. In the
written statement, it was stated that the plaintiffs were originally
residents of a Village Barbilla which is about 24 miles away from the
suit land. The plaintiffs never used to cultivate the suit land and they
were possessing the land through several tenants. The husband of the
defendant No. 1 and the father of the defendant No. 2, late Kalicharan
Kalita was possessing 6 Bighas 4 Kathas 3 Lechas of land covered by
Dag No. 3; 3 Bighas 3 Kathas 0 Lecha of land covered by Dag No.
3/903 under N.K. Patta No. 218 of Village Raipur, Mouza Sariha and 4
Kathas of land covered by Dag No. 48/1037 under J.K. Patta No. 47 of
Village Raipur, Mouza Sariha from time immemorial and paid 2½
monds of paddy per year per bigha to the plaintiffs. It was further
mentioned that during the year 1972 to 1976 the said 6 Bighas 4
Kathas 3 Lechas under Dag No. 3/903; 3 Bighas 3 Kathas 0 Lecha
under Dag No. 3 and 4 Kathas under Dag No. 48/1037 of village
Raipur was found in possession of the said Kalicharan Kalita.
Page No.# 16/39
14. The Assistant Settlement Officer therefore surveyed the land and
issued Khatian No. 11 in respect to land admeasuring 6 Bighas 4
Kathas 3 Lechas; Khatian No. 3 in respect to land admeasuring 3
Bighas 3 Kathas 0 Lecha and Khatian No. 12 in respect to land
admeasuring 4 Kathas of village Raipur in the year 1974 in favour of
late Kalicharan Kalita. It was also mentioned that the plaintiffs used to
regularly receive the rent from late Kalicharan Kalita and upon his
death, the Khatian was issued in the name of the defendants and they
were in physical possession over the land admeasuring 6 Bighas 4
Kathas 3 Lechas; 3 Bighas 3 Kathas 0 Lecha and 4 Kathas of land. It
was also averred that the plaintiff No. 1 was receiving the rent for him
and on behalf of the other Pattadars. Further to that, it was stated
that the plaintiff No. 1 started creating disturbance in receiving the
rent and issuing receipt thereof, for which, the defendants filed T.R.
Case No. 2/2002-03 under Section 23 of the Assam (Temporarily
Settled Areas) Tenancy Act, 1971 (for short, “the Act of 1971”) before
the Deputy Commissioner, Barpeta for granting ownership to the
defendants. The Additional Deputy Commissioner, Barpeta after due
enquiry and giving proper hearing to the Pattadars granted ownership
in favour of the defendants as per the provisions of law. It was further
stated that one of the Pattadar namely Balindra Nath Sarma had
preferred an Appeal before the Assam Board of Revenue which was
registered as Appeal No. 157 R.A.(B)/03 and the said appeal is
Page No.# 17/39
pending at the time when the suit was filed.
15. On the basis of the pleadings, the learned Court of the Munsiff,
Bajali at Pathsala (hereinafter referred to as, “the learned Trial Court”)
framed as many as 11 (eleven) issues, which being relevant are
reproduced herein under:
“I S S U E S
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present from?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the suit is undervalued?
5. Whether the plaintiffs have their right, title and interest over the suit land?
6. Whether the main defendants and the proforma defendants are not the
tenants under the plaintiffs and they have no occupancy title over the suit land?
7. Whether the grant of ownership right by the Additional Deputy Commissioner,
Barpeta to the defendants vide order dated 09.05.2003 passed in T.R. Case No.
2/02-03 and the entry of the names of the defendants as tenants in the revenue
record are ultra-vires, illegal, fraudulent and inoperative in the eye of law and not
binding upon the plaintiffs?
8. Whether the plaintiffs are entitled for recovery of khas possession of the suit
Page No.# 18/39land by evicting the defendant thereform?
9. Whether the plaintiffs recognized Kalicharan Kalita the husband of defendant
No. 1 and father of defendant No. 2 as their tenants and whether the plaintiffs
regularly received the rent from Sri Kalicharan Kalita?
10. Whether the plaintiffs are entitled for a decree as prayed for?
11. To what relief or reliefs the parties are entitled?”
16. On behalf of the plaintiffs, 3 (three) witnesses were examined
and various documents were exhibited and on behalf of the
defendants 7 (seven) witnesses were examined and 1 (one)
documentary evidence was exhibited.
17. The learned Trial Court vide the judgment and decree dated
18.07.2011 decreed the suit in favour of the plaintiffs. It is pertinent
to observe that the learned Trial Court on the basis of the evidence
came to a categorical finding in respect to the Issue No. 5 that the
plaintiffs have right, title and interest over the suit land.
The Issue Nos. 6 and 9 were decided together by the learned
Trial court and came to a categorical finding that the defendants as
well as their predecessor-in-interest late Kalicharan Kalita were not
tenants of the plaintiffs or their predecessor-in-interest at any point of
time. It was also observed that the learned Additional Deputy
Page No.# 19/39
Commissioner, Barpeta without going through the actual facts and
evidences available before him and not conducting proper enquiry
prescribed by the Act of 1971 passed the order dated 09.05.2003. The
learned Trial Court opined that the learned Additional Deputy
Commissioner, Barpeta failed to make a proper enquiry before further
proceeding in T.R. Case No. 02/2002-03 before granting ownership to
the defendants. On that basis, both the issues were decided in favour
of the plaintiffs.
In view of the discussions in respect to Issue Nos. 5, 6 and 7
and 9, the learned Trial Court while deciding the Issue No. 8 held that
the plaintiffs were entitled for recovery of khas possession of the suit
land by evicting the defendants.
The discussion on Issue No. 3 is also relevant inasmuch as the
Issue No. 3 pertains to, as to whether, the suit is bad for non-joinder
of necessary parties. It was observed by the learned Trial Court that
though the issue was raised in the written statement, but the issue
was never pressed by the defendants when the suit was proceeding.
On the ground that the defendants failed to raise the issue
subsequently and taking into account the provisions of Order I Rule
13 of the Code, the issue was decided in favour of the plaintiffs and
against the defendants.
18. Being aggrieved, an Appeal was filed by the defendant No. 2
Page No.# 20/39
before the learned Court of the Civil Judge, Barpeta (hereinafter
referred to as, “the learned First Appellate Court”) which was
registered and numbered as Title Appeal No. 58/2011. The learned
First Appellate Court while deciding the said Appeal formulated 3
(three) points for determination, which being relevant are reproduced
herein under:
“A. Whether the suit is barred u/s 66 of the Assam (Temporarily Settled Areas)
Tenancy Act, 1971?
B. Whether the plaintiffs have got any right, title and interest over the suit
land?
C. Whether the present defendants or their predecessor-in-interest is/was
tenant under the plaintiffs and they were validly granted the ownership right over
the suit land in terms of Section 23 of the Assam (Temporarily Settled Areas)
Tenancy Act, 1971?”
19. The learned First Appellate Court vide the judgment and decree
dated 30.08.2013 dismissed the said Appeal. In doing so, the learned
First Appellate Court while deciding the point for determination No.
A., decided that the suit was not barred under Section 66 of the Act
of 1971. In respect to the point for determination No. B., the learned
First Appellate Court decided that the plaintiffs have got right, title
and interest over the suit land. On the point for determination No. C.,
the learned First Appellate Court confirmed the findings of the learned
Trial Court and held that the defendants as well as the predecessor-in-
Page No.# 21/39
interest of the defendants were not tenants under the plaintiffs and
they were therefore not entitled to be granted ownership over the suit
land in terms with Section 23 of the Act of 1971. It is under such
circumstances, RSA No. 79/2014 was filed.
RSA No. 80/2014
20. The related suit is Title Suit No. 02/2008 wherein, in respect to
the Schedule ‘B’ land, in Title Suit No. 07/2008, the defendant herein
was granted the ownership in respect to the Schedule ‘C’ land vide an
order dated 09.05.2003 in T.R. case number 1/2002-03. The material
facts as well as the allegations made in both the suits i.e. Title Suit
No. 02/2008 and Title Suit No. 07/2008 being similar, the same are
not repeated for the sake of brevity.
21. In the instant suit, the written statement was filed by the
defendant. Apart from taking various pleas on the maintainability of
the suit, it was pleaded that the father of the defendant, late
Guneswar Das was possessing 6 Bighas 2 Kathas 10 Lechas of land
from time immemorial and paid 2½ monds of paddy per year per
bigha. It was further mentioned that in the last settlement operation
during 1972-1976, the said 6 Bighas 2 Kathas 10 Lechas of land under
Dag No. 3 of Village Raipur was found in possession of late Guneswar
Das. The Assistant Settlement Officer thereupon issued Kutcha
Khatian No. 63 of village Raipur in 1974 and after issuance of the
Page No.# 22/39
Kutcha Khatian, the Assistant Settlement Officer invited objections
and when no objections were received from any corner, the Assistant
Settlement Officer issued the Final Khatian No. 28 of Village Raipur in
the name of the father of the defendant, late Guneswar Das by
curving out Dag Nos. 906 and 908 of Patta No. 218 of Village Raipur.
It was further stated that the plaintiffs and the other Pattadars
recognized the father of the defendant as their tenant and were
regularly receiving the rent from the father of the defendant and
when late Guneswar Das expired, the Khatian was issued in the name
of the defendant and he was in physical possession over the said 6
Bighas 2 Kathas 10 Lechas of land.
22. It was further stated in the written statement that the plaintiff
No. 1 was in charge of receiving the rent for himself and on behalf of
the other Pattadars. However, when the plaintiff No. 1 created
disturbance in receiving the rent, the defendant submitted T.R. Case
No. 1/2002-03 under Section 23 of the Act of 1971 before the learned
Deputy Commissioner, Barpeta seeking granting of ownership. It was
also mentioned that the learned Additional Deputy Commissioner,
Barpeta after making due enquiry and giving proper hearing to the
Pattadars granted ownership right in favour of the defendant as per
provisions of law. It was further mentioned that one of the Pattadars,
namely Balindra Nath Sarma, had preferred an Appeal before the
Assam Board of Revenue which was registered and numbered as
Page No.# 23/39
Appeal No. 163 R.A.(B)/03 and the appeal was pending as on the date
on which the suit was filed.
23. The learned Trial Court on the basis of the pleadings framed as
many as 11 (eleven) issues which being relevant are reproduced
herein under:
“I S S U E S
1. Whether there is cause of action for the suit?
2. Whether the suit is maintainable in its present from?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the suit is undervalued?
5. Whether the plaintiffs have their right, title and interest over the suit land?
6. Whether the main defendants and the proforma defendants are not the
tenants under the plaintiffs and they have no occupancy title over the suit land?
7. Whether the grant of ownership right by the Additional Deputy Commissioner,
Barpeta to the defendants vide order dated 09.05.2003 passed in T.R. Case No.
1/02-03 and the entry of the names of the defendants as tenants in the revenue
record are ultra-vires, illegal, fraudulent and inoperative in the eye of law and not
binding upon the plaintiffs?
8. Whether the plaintiffs are entitled for recovery of khas possession of the suit
Page No.# 24/39land by evicting the defendant thereform?
9. Whether the plaintiffs recognized Kalicharan Kalita the husband of defendant
No. 1 and father of defendant No. 2 as their tenants and whether the plaintiffs
regularly received the rent from Sri Kalicharan Kalita?
10. Whether the plaintiffs are entitled for a decree as prayed for?
11. To what relief or reliefs the parties are entitled?”
24. On behalf of the plaintiffs, 5 (five) witnesses were examined and
3 (three) documentary evidence were exhibited. On behalf of the
defendant, 5 (five) witnesses were examined and various documents
were exhibited. The learned Trial Court had also exhibited a document
which was marked as Exhibit X(2). The learned Trial Court decreed
the suit in favour of the plaintiffs vide the judgment and decree dated
18.07.2011. The findings so arrived at by the learned Trial Court is
similar to the findings so arrived at by the learned Trial Court in Title
Suit No. 07/2008 and for the sake of brevity, the same are not
repeated. However, this Court finds it pertinent to note that while
deciding the Issue Nos. 5 and 6, the learned Trial Court came to a
categorical finding that the defendant was not the son of late
Guneswar Das as the defendant himself admitted during his cross-
examination. The learned Trial Court also arrived at the finding that
the defendant had no blood relation with late Guneswar Das.
Page No.# 25/39
25. An Appeal thereagainst was preferred before the learned First
Appellate Court by the defendant, which was registered and
numbered as Title Appeal No. 59/2011 and the learned First Appellate
Court similar to the Appeal in Title Appeal No. 58/2011 formulated 3
(three) points for determination which were similar to the points for
determination framed in Title Appeal No. 58/2011 and the outcome of
the said 3 (three) points for determination were also the same as that
of the outcome in Title Appeal No. 58/2011. It is under such
circumstances, RSA No. 80/2014 has been filed.
ANALYSIS AND DETERMINATION
26. In the backdrop of the above, let this Court now take into
account, as to whether, the substantial questions of law so formulated
by this Court, as quoted herein above, are involved in the instant
Appeal.
27. The first substantial question of law so formulated pertains to, as
to whether, an occupancy tenant under the Act of 1971 whose name
was duly entered in the Khatian Patta can be ejected from the land
under his occupation dehors the provisions prescribed by Section 51
of the Act of 1971.
28. It is relevant to take note of the findings arrived at concurrently
by both the learned Courts below, i.e., the learned Trial Court as well
Page No.# 26/39
as the learned First Appellate Court. The status of occupancy tenant
of the defendants in Title Suit No. 07/2008 as well as the defendant in
Title Suit No. 02/2008 were dealt with by both the fact finding Courts.
The learned Trial Court while deciding the Issue Nos. 6 and 9 in
Title Suit No. 07/2008 came to categorical findings that the
defendants failed to prove by way of any documentary evidence or
otherwise that they or their predecessor-in-interest, i.e., late
Kalicharan Kalita were tenants under the plaintiffs or their
predecessor-in-interest. It was observed by the learned Trial Court
that the defendants though had categorically stated in their written
statement that the plaintiffs have recognized the defendants as well
as their predecessor-in-interest as tenants by issuance of receipts, but
the defendants failed to prove any of such receipts. These findings of
fact so arrived at by the learned Trial Court in respect to Issue Nos. 6
and 9 have been affirmed by the learned First Appellate Court in the
impugned judgment and decree dated 30.08.2013. No perversity in
respect to the said findings could be shown before this Court.
29. Now let this Court deal with the findings of facts arrived at by
the learned Trial Court as well as the learned First Appellate Court in
respect to Title Suit No. 02/2008. The learned Trial Court, while
deciding the Issue Nos. 5 and 6 came to categorical findings on facts
that the defendant was not a tenant of the plaintiffs under the law.
Page No.# 27/39
The learned Trial Court also held that the defendant had entered his
name in the revenue records illegally, unlawfully as well as collusively.
Further to that, the learned Trial Court also arrived at findings that the
defendant was not the son of late Guneswar Das as the defendant
had himself admitted that he is not the son of late Guneswar Das. The
learned Trial Court further observed that the defendant was a railway
employee serving in the Railway Protection Force (R.P.F.), and as
such, being a regular employee of Railway, cannot personally cultivate
the suit land to include his name as a tenant. These findings of facts
arrived at by the learned Trial Court in its judgment and decree dated
18.07.2011 in Title Suit No. 02/2008 have been confirmed by the
learned First Appellate Court in the judgment and order dated
30.08.2013 in Title Appeal No. 59/2011. No perversity to those
findings of facts could be shown by the Appellant in the present
Appeal.
30. In view of the findings of facts arrived at by the learned Trial
Court and the confirmation of the same by the learned First Appellate
Court in both the suits, the first substantial question of law so
formulated in both the Appeals cannot be said to be involved at all
inasmuch as unless the Appellants herein or their predecessors were
occupancy tenants under the Act of 1971, the question of application
of Section 51 of the Act of 1971 do not arise at all. Under such
circumstances, it is therefore the opinion of this Court that the first
Page No.# 28/39
substantial question of law so formulated in both the Appeals are not
involved.
31. The second substantial question relates to, as to whether, the
Civil Court is vested with the jurisdiction to nullify the entries made in
the record of rights and in the matter of maintenance of the record of
rights, notwithstanding the bar imposed under Section 66 of the Act
of 1971.
32. The said substantial question of law so formulated is related to
the point for determination A., as formulated by the learned First
Appellate Court while deciding both the First Appeals. The learned
First Appellate Court in the respective judgment and orders passed on
30.08.2013 in both Title Appeal No. 58/2011 and Title Appeal No.
59/2011, opined that the dispute between the plaintiffs and the
defendants were landlord and tenant disputes and Section 68 of the
Act of 1971 would apply and not Section 66 of the Act of 1971. It was
further opined that the proceedings under Section 23 of the Act of
1971 were initiated and disposed of in gross violation to the
mandatory provisions of Section 23 of the Act of 1971 and the Rules 9
to 15 and 16 of the Rules of the Assam (Temporarily Settled Areas)
Tenancy Rules, 1972. The said opinions in respect to the point of
determination A., appears to be in consonance with the settled law.
33. Additionally, this Court finds it pertinent to observe that a
Page No.# 29/39
perusal of the plaints, in both the suits would show that the plaintiffs
have sought for declaration of their right, title and interest as well as
for recovery of khas possession. Both the fact finding Courts opined
that the defendants/the Appellants herein have failed to prove that
they were tenants under the plaintiffs. It is also the finding of fact
that the learned Additional Deputy Commissioner, Barpeta while
passing the order dated 09.05.2003 in T.R. Case No. 1/2002-03 and
T.R. Case No. 2/2002-03 did not adhere to the provisions of the Act of
1971 and the Rules framed therein. Nothing could be shown that
these findings of facts suffers from perversity.
34. This Court now finds it very pertinent to take note of the
judgment of the Constitution Bench of the Supreme Court in the case
of Dhulabhai ETC. Vs. The State of Madhya Pradesh & Another reported
in AIR 1969 SC 78 wherein the Constitution Bench of the Supreme
Court summarized the principles when the jurisdiction of the Civil
Court cannot be said to be ousted. One of the principles so set out by
the Constitution Bench of the Supreme Court in the said judgment is
where the statute gives finality to the orders of the Special Tribunals,
the Civil Courts jurisdiction must be held to be excluded if there is an
alternative remedy to do what the Civil Courts would normally do in a
suit. It was further observed that such proposition would not apply in
those cases where the provisions of a particular Act have not been
complied with or the statutory Tribunal has not acted in conformity
Page No.# 30/39
with the fundamental principles of judicial procedure. The relevant
observations of the Supreme Court in the case of Dhulabhai (supra)
are reproduced herein below:
“(1) Where the statue gives a finality to the orders of the special tribunals the
civil courts’ jurisdiction must be held to be excluded if there is adequate remedy to
do what the civil courts would normally do in a suit. Such provision, however, does
not exclude those cases where the provisions of the particular Act have not been
complied with or the statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure”
35. In the instant case, it is the finding of fact of both the fact-
finding Courts that the defendants/the appellants herein failed to
prove that they were tenants under the plaintiffs and the learned
Additional Deputy Commissioner, Barpeta while passing the orders of
granting ownership have done so in violation to the provisions of the
Act of 1971 and the Rules framed therein under. In that view of the
matter, the Civil Court’s jurisdiction cannot be said to have ousted by
Section 66 of the Act of 1971. Under such circumstances, this Court
therefore is of the opinion that the second substantial question of law
so formulated cannot also be said to be involved in both the Appeals.
36. The third substantial question of law so formulated in both the
Appeals is, as to whether, under the Act of 1971 an occupancy tenant
enjoys a permanent, heritable and transferable rights of use and
occupancy in the land of his holding. In the opinion of this Court, the
Page No.# 31/39
said substantial question of law cannot be said to be involved at all
taking into account the defendants/the appellants in both the Appeals
herein have failed to prove that they are occupancy tenants.
37. The fourth substantial question of law so formulated is whether
in absence of any contrary evidence available on record, the Courts
were obliged to draw presumption in respect of correctness to the
entries made in the revenue records maintained by the Revenue
Authority. In Title Suit No. 07/2008, the defendants therein took the
plea that their predecessor-in-interest late Kalicharan Kalita was a
tenant under the plaintiffs and were issued Khatian Nos. 11, 3 and 12
by the Assistant Settlement Officer and also that the Pattadars have
recognized them as well as their predecessor-in-interest as tenant. It
was further mentioned that after the death of late Kalicharan Kalita,
the name of the defendants were duly entered as tenants over the
suit land. However, the defendants failed to produce any documentary
evidence as regards issuance of any Khatian in favour of the
defendants by the Revenue Authority. The defendants also averred
that they were issued rent receipts which were also not proved.
Merely, 2 (two) documents were proved which were only land revenue
paying receipts.
Now coming to the case of the defendant in Title Suit No.
02/2008, the said defendant claimed his right through one late
Page No.# 32/39
Guneswar Das, but could not show that he had any relation with late
Guneswar Das by way of evidence. The findings of facts by both the
learned Courts below also showed that the defendant who was the
DW1 also stated in his evidence that he was not the son of late
Guneswar Das. The learned Courts below have also opined on facts
that the entry in the record of rights was done illegally and by not
following the provisions of the Act of 1971 and the Rules framed
therein under.
Under such circumstances, the discussion of the evidence made
by both the learned Courts below clearly showed that the
defendants/appellants in both the Appeals could not prove that they
were tenants under the plaintiffs. Therefore, the fourth substantial
question of law so formulated in both the Appeals are not involved in
the instant Appeals.
38. Further to that, the presumption in terms with Section 58 of the
Act of 1971, in respect to the correctness of the entry is rebuttable by
way of evidence. The materials on record and the findings of facts
arrived shows that the learned fact finding Court on the basis of
evidence held that the grant of occupancy rights as well as ownership
rights were contrary to the mandate to be followed in terms with the
Act of 1971 and the Rules framed therein under. In that view of the
matter also, this Court is of the opinion that the fourth substantial
Page No.# 33/39
question of law cannot be said to be involved in both the Appeals.
39. The additional substantial questions of law which were
formulated in the instant Appeals were, as to whether, the suits so
filed by the plaintiffs being Title Suit No. 02/2008 as well as Title Suit
No. 07/2008 could have been filed without making the State of Assam
or the authority granting the ownership rights as parties to the suit. In
other words, the substantial question of law deals with the question,
as to whether, the State of Assam or the Additional District
Commissioner were necessary parties to the suit.
40. At the outset, it is relevant to take note of that in the written
statements so filed by the defendants they only mentioned that the
suit is bad for non-joinder of necessary parties. There was no mention
whatsoever, as to who, was the necessary party and in whose
absence the suit cannot be decided. In the opinion of this Court,
when objections are taken in the written statement on the question of
maintainability of the suit and, more particularly, on the question of
non-joinder of necessary parties, there is requirement of stating in a
precise manner, as to who, are the necessary parties, in whose
absence the suit cannot proceed. The settled principles of law
distinguishes the concept of necessary party with that of proper party
inasmuch as a necessary party is one without whose presence no suit
can proceed and relief(s) can be granted whereas proper party is one
Page No.# 34/39
whose presence is desirable for an effective adjudication. It is in this
aspect pertinent to observe that Order I Rule 9 of the Code do not
permit a suit to be defeated by reason of mis-joinder or non-joinder of
parties, but the proviso to the said Rule stipulates that the said Rule
shall not apply insofar as non-joinder of necessary party. In this
regard, this Court finds it relevant to take note of the judgment of the
Supreme Court in the case of Laxmishankar Harishankar Bhatt Vs.
Yashram Vasta (DEAD) By Lrs. reported in (1993) 3 SCC 49. Paragraph
No. 11 of the said judgment is reproduced herein under:
“11. A careful reading of above clearly discloses that there is no clear averment as
to who are the co-owners and what exactly is the nature of right claimed by them.
A vague statement of this character, in our considered opinion, could hardly be
sufficient to non-suit the appellant on the ground of non-joinder of parties. We are
unable to comprehend as to how the trial court had come to the conclusion that
the executants of the sale deed dated February 12, 1968 could not pass a full title
when it itself points out that the shares of the other co-owners were not known.
Maybe the appellant took the stand that it was not necessary to implead others
but that does not mean the appellant is liable to be non-suited. The stand of the
appellant is consistent with his case that he has come to acquire the entire
ownership of the suit property. Therefore, the courts should have insisted on some
material or record as to the existence of other co-owners and their rights
pertaining to suit properties. In juxtaposition to revenue record, there must be
some worthwhile evidence for the court to conclude that there are other co-
owners. Genealogical tree filed along with the written statement cannot point to
the existence of co-owners without specific evidence in this regard. Such an
evidence is totally lacking in this case. Therefore, we find it equally impossible to
accept the finding of the High Court when it endorsed the view of the trial court in
Page No.# 35/39this regard. Accordingly, we conclude that in the absence of a specific finding as to
whether there are other co-owners and how they are necessary parties, the suit
could not have been dismissed for non-joinder of necessary parties. On this
conclusion, we think it is unnecessary to go into the legal aspect as to whether in
the absence of other co-owners, one co-owner could maintain a suit.”
41. This Court further finds it relevant to observe that on the basis of
the said averment that the suit was bad for non-joinder of necessary
parties. Issue No. 3 was framed in both the suits, as to whether, the
suit is bad for non-joinder of necessary parties. The records reveal
that the said Issue No. 3 were decided against the defendants on the
ground that the defendants did not press the issue at the time of trial.
It is also seen that the defendants in the First Appeals also did not
raise the said aspect. In this regard, this Court finds it apposite to
refer to a judgment of the Supreme Court in the case of Beharilal &
Another Vs. Bhuri Devi (SMT) & Others reported in (1997) 2 SCC 279
wherein the issue involved was whether it was necessary to implead
the Mandi Committee as a co-defendant when there was a challenge
to the cancellation of the Patta against the plaintiff and land allotted
in favour of the defendant. In the said proceedings, the Supreme
Court while dealing with the said question, as to whether, failure to
implead the Mandi Committee had rendered the suit as invalid,
observed at paragraph Nos. 8 and 9 that though such a plea was
raised in the written statement about non-joinder of necessary parties
Page No.# 36/39
and the issue was also framed, but the Trial Court had negatived it
and thereupon the same was not pursued. The effect of not pursuing
was dealt with by the Supreme Court at paragraph Nos. 8 and 9 of
the said judgment which being relevant are reproduced herein under:
“8. The next question is: Whether the failure to implead the necessary parties,
i.e., the Mandi Committee, renders the suit as invalid? Order 1 Rule 13, CPC
envisages thus:
“13. Objections as to non-joinder or misjoinder.- All objections on the
ground of non-joinder or misjoinder of parties shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at or before
such settlement, unless the ground of objection has subsequently arisen, and
any such objection not so taken shall be deemed to have been waived.”
9. Though the respondent has pleaded in the written statement the non-
joinder of necessary parties and an issue was raised, the trial court had negatived
it and the same was reiterated and argued before the learned Single Judge. The
learned Single Judge also has held that though the Government may be a proper
party to the suit, but since claim for possession is not being sought for against the
Government or Mandi Committee they are not necessary parties. The decree for
possession granted by the trial court may not bind the Government on that
ground. However, the omission to implead the Government or the Mandi
Committee as a co-defendant is not vitiated by Order 1, Rule 13 CPC. Therefore,
the suit need not be dismissed on the ground of their non-joinder. As seen, these
findings were allowed to become final, since that aspect of the matter was not
argued before the Division Bench. The respondent waived that objection before
the Division Bench. Thus, it is not open to the appellants to raise that objection in
this appeal. It is accordingly rejected.”
42. Another vital aspect which this Court also finds it pertinent to
Page No.# 37/39
deal with in view of the arguments made that the State of Assam as
well the authority granting ownership were necessary parties is to
consider, as to whether, the State of Assam as well as the authority
granting the ownership to the defendants were at all necessary
parties.
43. From the materials on record, it is seen that the suit lands
admittedly are not Government lands. By exercise of power under the
Act of 1971, the learned Additional Deputy Commissioner had
conferred ownership of the lands belonging to the plaintiffs to the
principal defendants in both the suits. There was no vesting of any
rights over the suit lands upon the Government of Assam or any land
of the Government of Assam being allotted to the defendants.
44. In the case of Doraiswami Goundan Vs. Subramania Mudaliar
reported in AIR 1950 Mad 659, it was held that in a suit between
private parties where the issues were whether Section 44-B of the
Madras Hindu Religious Endowments Act was ultra vires and whether
the orders passed by the Revenue Officers were void and without
jurisdiction and when no relief was asked against the Government,
the Government was not a necessary party to the suit, though it was
a proper party.
45. In the case of Thakur Laxman Singh Vs. Thakur Raj Jujar Singh
reported in (1953) SCC OnLine RAJ 207 wherein, in a suit filed, the
Page No.# 38/39
plaintiff questioned the order of her highness the Dowager Maharani
dated 20.11.1948 on the ground of jurisdiction, one of the issues so
formulated in the said proceedings was whether the Government of
Rajasthan was a necessary party to the suit. The learned Trial Court
decided that the Government was not a necessary party though the
order of Raj Mata Saheba dated 20.11.1948 was questioned in a Court
of law. An Appeal thereagainst was filed before the learned District
Judge who opined that the Government was a necessary party and
directions were issued that the Government of Rajasthan should be
made a party for the right and correct decision of the suit. An Appeal
thereagainst was filed before the Rajasthan High Court wherein the
learned Division Bench of the Rajasthan High Court opined that the
Government was not a necessary party. In the said judgment, the
learned Division Bench of the Rajasthan High Court observed that the
act on the part of the sovereign authority i.e. Raj Mata Saheba dated
20.11.1948 for ordering transfer of the disputed property from the
plaintiff to the defendant, no right of the Government was affected,
for which, it was not necessary to make the State a party. It was
further observed that it is not necessary that the State should be
made a party in every suit in which an order of such nature was
challenged.
46. This Court is in agreement with the propositions of law so settled
by the Madras High Court as well as the Rajasthan High Court.
Page No.# 39/39
Accordingly, the State of Assam at best can be said to be a proper
party, but not a necessary party to the suit. As the consequence
thereof is that by virtue of Order I Rule 9 of the Code, the suits so
filed cannot be defeated. In that view of the matter, the additional
substantial question of law so formulated in both the Appeals on the
basis of orders passed by this Court on 09.08.2022 are not involved.
47. Accordingly, both the Appeals stands dismissed with costs
quantified at Rs. 11,000/- in each Appeal.
48. The judgments and decrees passed by both the learned Courts
below stands confirmed.
49. The records of the learned Courts below be returned.
JUDGE
Comparing Assistant