On The Death Of Feddus Ali vs Abul Kasem And 13 Ors on 27 July, 2026

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    Gauhati High Court

    On The Death Of Feddus Ali vs Abul Kasem And 13 Ors on 27 July, 2026

                                                                Page No.# 1/15
    
    GAHC010282542019
    
    
    
    
                                                           2026:GAU-AS:10291
    
                           THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
    
                               Case No. : RSA/267/2019
    
             ON THE DEATH OF FEDDUS ALI, HIS LEGAL HEIRS
             NAMELY-
    
             1.1: AYSA KHATUN
             W/O LATE FERDDUS ALI @ FEDDUS ALI
    
             R/O- VILL.- BAGURIGURI PATHAR
             MOUZA- KHARIZA BIJNI
             P.S. SORBHUG
             DIST.- BARPETA
             ASSAM.
    
             1.2: AKHER ALI
              S/O LATE FEDDUS ALI
    
             R/O- VILL.- BAGURIGURI PATHAR
             MOUZA- KHARIZA BIJNI
             P.S. SORBHUG
             DIST.- BARPETA
             ASSAM.
    
             1.3: ATOWAR RAHMAN
              S/O LATE FEDDUS ALI
    
             R/O- VILL.- BAGURIGURI PATHAR
             MOUZA- KHARIZA BIJNI
             P.S. SORBHUG
             DIST.- BARPETA
             ASSAM.
    
             1.4: AFTAR ALI
              S/O LATE FEDDUS ALI
    
             R/O- VILL.- BAGURIGURI PATHAR
                                     Page No.# 2/15
    
    MOUZA- KHARIZA BIJNI
    P.S. SORBHUG
    DIST.- BARPETA
    ASSAM.
    
    1.5: ANOWAR HUSSAIN
     S/O LATE FEDDUS ALI
    
    R/O- VILL.- BAGURIGURI PATHAR
    MOUZA- KHARIZA BIJNI
    P.S. SORBHUG
    DIST.- BARPETA
    ASSAM.
    
    1.6: FIROZA KHATUN
     D/O LATE FEDDUS ALI
    W/O A. GAFOR
    
    R/O- VILL.- BAGURIGURI PATHAR
    MOUZA- KHARIZA BIJNI
    P.S. SORBHUG
    DIST.- BARPETA
    ASSAM.
    
    1.7: AFRUZA KHATUN
     D/O LATE FEDDUS ALI
    W/O ABIRUDDIN MANDAL
    
    R/O- VILL.- BAGURIGURI PATHAR
    MOUZA- KHARIZA BIJNI
    P.S. SORBHUG
    DIST.- BARPETA
    ASSAM.
    
    1.8: SABIRON NESSA
     D/O LATE FEDDUS ALI
    W/O MAHAMMAD ALI
    
    R/O- VILL.- BAGURIGURI PATHAR
    MOUZA- KHARIZA BIJNI
    P.S. SORBHUG
    DIST.- BARPETA
    ASSAM
    
    VERSUS
    
    ABUL KASEM AND 13 ORS.
    S/O- LATE FAKIR MAHMUD
                                                                             Page No.# 3/15
    
    
                2:BAHARUL ISLAM
                 S/O- LATE FAKIR MAHMUD
    
                3:JAMAL UDDIN
                 S/O- LATE A KADDUS
    
                4:MAHABUR ALI
                 S/O- LATE A KADDUS
    
                5:ABBASH ALI
                 S/O- LATE A KADDUS
    
                6:MOHAR ALI
                 S/O- LATE SHER MAHMUD
    
                7:AFSAR ALI
                 S/O- LATE SHER MAHMUD
    
                8:ANSER ALI
                 S/O- LATE SHER MAHMUD
    
                9:AMZAD ALI
                 S/O- LATE SHER MAHMUD
    
                10:STRUCK OFF.
                VIDE HON'BLE COURT'S ORDER DTD. 8/8/2022 PASSED IN RSA
                NO.267/2019.
    
                11:LEGAL HEIRS OF SHAJAMAL MONDOL
                 MUNNAF ALI
                 S/O- LATE SHAJAMAL MONDOL
    
                12:SAIFUL ISLAM MONDOL
                 S/O- LATE SHAJAMAL MONDOL
    
                13:RASHIDUL MONDOL
                 S/O- LATE SHAJAMAL MONDOL
                ALL ARE RESIDENTS OF VILL.- BAGURIGURI PATHAR
                 MOUZA- KHARIZA BIJNI
                 P.S. SORBHONG
                 DIST.- BARPETA
                ASSAM.
    
                14:STRUCK OFF.
                VIDE HON'BLE COURT'S ORDER DTD. 8/8/2022 PASSED IN RSA NO.267/2019
    
    Advocate for the Petitioner   : MR. J AHMED, MRS R BEGUM,MS A HUSSAIN
                                                                               Page No.# 4/15
    
    
    Advocate for the Respondent : MR B DEORI, MR. A C SARMA,MR G BHARADWAJ,MR. B
    HUSSAIN
    
    
    
    
                                     BEFORE
                        HONOURABLE MR. JUSTICE ROBIN PHUKAN
    
                                            ORDER
    

    27.07.2026.

    Heard Mr. J. Ahmed, learned counsel for the appellants and Mr. A.C. Sharma,
    learned Sr. Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the
    respondent.

    SPONSORED

    2. This second appeal, under Section 100 of the CPC, is directed against the
    order dated 24.09.2019, passed in Title Appeal No. 66/2017 and also the order
    dated 24.09.2019, passed in Misc(J) Case No. 115/2013 filed against the
    judgment and decree dated 30.06.2017, passed in Title Suit No. 58/2013 by the
    learned Munsiff No.2 Barpeta.

    3. It is to be noted here that vide impugned order dated 24.09.2019, passed
    in Misc(J) Case No. 115/2013, the learned First Appellate Court had rejected the
    petition under Section 5 of the Limitation Act for condonation of delay and
    consequently, dismissed the Title Appeal No. 66/2017, and consequently, affirmed
    the judgment and decree dated 30.06.2017, passed in Title Suit No. 58/2013 by
    the learned Munsiff No.2 Barpeta.

    4. For the sake of convenience and to avoid confusion, the parties will be
    referred to as per their original status in the title suit, before the learned Trial
    Court.

    The Background Facts:-

    5. The background facts, leading to filing of the present appeal, are briefly
    stated as under:-

    Page No.# 5/15

    The case of the plaintiff is that a plot of land measuring 9 B 4K
    11L of land (4B 4K 11L covered by Dag No 340/PP No 129 and 4 B 4k
    10L covered by Dag No 339/ PP No 173) in village Bagariguri Pathar
    Mouza Khanza Bijni, District Barpeta is the Schedule A land of the
    plaint. The 4 B 4 K 11 L of land in Dag No 340 is the Schedule B land of
    the plaint and the 4B 4K the Schedule C land of the plaint.

    The original pattadar of the Schedule A land sold the Schedule A
    land to the plaintiff by executing a Regd. Sale Deed No 1011/65. But,
    the name of the plaintiff was cancelled without any specific order. The
    plaintiff gave Adhi of his land to Abdul Kashem, Abdul Kuddus, Baharul
    Islam, Shajamal Mondol. After the death of Shajamal Mondol, his legal
    heirs, the defendant No(s) 10, 11 and 12 have been possessing the
    Schedule C land as adhiar. Similarly, Abdul Kuddus, Abdul Kashem,
    Sher Mahmud and Baharul Islam have been possessing the Schedule B
    land, but later on, the defendants refused to give adhiar and when the
    plaintiff requested them to vacate the lands, the defendants claimed
    that they purchased those lands from the original pattadar.

    Thereafter, on 15-01-13, the plaintiff came to know that the
    defendants have illegally mutated their names over the Schedule B and
    C land.

    The plaintiff neither sold or transferred his lands to anybody and
    hence the defendants do not have right, title and interest over the suit
    land. Then the plaintiff has filed a title suit, being T.S. No.58/2013,
    against the respondents/defendants in the Court of Munsif No. 2.
    Barpeta, praying for right, title and interest and khas possession of the
    plaintiff over the suit land, cancellation of various mutation orders
    illegally conferring mutation to the defendants, permanent injunction,
    Page No.# 6/15

    etc.

    The defendants appeared and filed written statement (WS). In their
    WS, the defendants claimed that the father of the plaintiff gifted the
    Schedule A land in favour of his sons: Khoka Mondol and Iddrish Ali in
    the year 1967 and mutated their names on 21-12-67. But the plaintiff
    has not questioned the said mutation and hence the suit is barred by
    limitation. Also the defendants have claimed that the suit is not
    maintainable as the same is barred under the Assam Temporary Settled
    Areas Tenancy Act. The defendants have claimed that the father of the
    plaintiff purchased the Schedule A land in the name of his son, Feddus
    Ali who was a minor back then. Later on, Dhan Mamud gifted the
    Schedule A land as per Islamic Law in favour of his sons Khoka Mandal
    and Iddrish Ali and put them in possession. Thereafter, the names of
    Idrish Ali and Khoka Mandal were mutated as per the order of SDC on
    21-12-67. Khoka Mandal sold 2B 10L out of Schedule A land to the
    father of the defendant Nos 3, 4, 5 and Sher Mamud, the father of the
    defendant Nos 6,7,8,9 and the defendant Nos. 1 and 2 by executing
    Regd Sale Deed No 692/79. Khoka Mandal again sold 2B 2K 1L out of
    Schedule À land in favour of the sons of late Fakir Mamud by executing
    Regd Sale Deed No 163/90. Iddrish Ali gifted 2B out of his share in
    Schedule A land in favour of Bagariguri Dar Ul Ulum by executing Regd
    Deed No 576/81. Iddnsh Ali also sold 4K 10L to Shah Jamal by
    executing Regd. Sale Deed No 1292/90 and 2B to defendant No 2 by
    executing Regd. Sale Deed No 1778/96. Hence by virtue of being lawful
    owners over the suit land, the defendants have prayed for dismissal of
    the suit.

    On the basis of the pleadings, the following issues were framed
    by the Court:-

    Page No.# 7/15

    (a) Whether there is cause of action for the suit?

    (b) Whether the suit is barred by limitation?

    (c) Whether the plaintiff has right, title and interest over
    the suit land?

    (d) Whether the plaintiff is entitled for the reliefs claimed?

    (e) To what other relief/reliefs the plaintiff is entitled to?

    The plaintiff then examined one Feddus Ali as PW-1, Kashem Ali as
    PW-2, Gafur Ali as PW-3,-Ayesha Khatun as PW-4. The defendants on
    the other examined Baharul Islam as DW-1, Khoka Mandal as DW-2
    and Kandu Sheikh as DW-3.

    Thereafter, hearing the arguments of both sides and has perused
    the record the learned Trial Court had decided Issue No.(a) in
    affirmative. Issue No.(b) is in affirmative by holding that the suit is
    barred by limitation. Issue No (c), in affirmative by holding that the
    plaintiff has no right, title and interest over the suit land. And in view of
    the findings in Issues No (b) and (c), the learned Trial Court had
    decided Issues No (d) and (e) against the plaintiff. And thereafter, vide
    judgment and decree, dated 30.06.2017, the learned Trial Court had
    dismissed the suit.

    Then being aggrieved, by the judgment and decree, dated
    30.06.2017, passed by the learned Trial Court, the plaintiff had
    preferred an appeal before the learned First Appellate Court, being Title
    Appeal No. 66/2017, and as there was delay of 180 days in preferring
    the same, the plaintiff had also filed one application for condonation of
    delay being Misc(J) Case No. 115/2013.

    But, vide order dated 24.09.2019, passed in Misc(J) Case No.
    115/2013, the learned First Appellate Court had rejected the petition
    Page No.# 8/15

    for condonation of delay as the grounds set forth in the petition for
    delay was not substantiated on the face of the Medical Certificate and
    accordingly, rejected the petition. And since the petition for delay
    condonation is rejected, the learned First Appellate Court had dismissed
    the Title Appeal No. 66/2017 vide another order dated 24.09.2019.
    Threby the judgment and decree, dated 30.06.2017, passed in Title
    Suit No. 58/2013, by the learned Trial Court stands affirmed.

    6. Being aggrieved the plaintiff has preferred the present appeal and the same
    was admitted vide order dated 08.08.2022on following substantial question of
    law:-

    (a) Whether the Court below was justified in dismissing
    the suit of the plaintiff on the basis that the
    plaintiff’s right over the suit land stood
    extinguished and time barred without there being any
    materials on record to show that the defendants
    claimed adverse possession against the plaintiff?

    (b) Whether the right, title and interest of the plaintiff
    in the instant case can stand extinguished for not
    challenging the registered deed No.576 executed in
    the year 1981 and allowing the defendants to remain
    in possession of the suit land?

    (c) Whether the judgment and decree passed by the trial
    court suffers from perversity?

    Submissions of learned counsel for the appellant:-

    7. Mr. Ahmed, learned counsel for the appellant, has submitted that the learned
    Trial Court had erroneously decided Issue Nos. (b) and (c) and that the suit was
    not barred by limitation and the plaintiffs have right, title and interest over the
    suit land. He also submitted that the predecessor of the present plaintiffs had
    purchased the suit land from original pattadar vide Exhibit-1, Sale Deed No. 1011
    Page No.# 9/15

    dated 02.08.1965, and the said original pattadar had never sold any land to the
    defendants and that the defendants are strangers. Though, the defendants have
    claim their title on the basis of an oral gift and mutation of their names in the
    revenue record, yet, mutation of name in the revenue record confers no title
    upon the defendants, who are strangers and the learned Trial Court had
    erroneously decreed the suit and the same suffers from perversity and the
    substantial question of law No.(c) flows out of the impugned judgment and
    decree. He also submits that Khalil was not the owner of the suit property and he
    cannot donate the suit land and that the learned Trial Court had decided the
    issue Nos. (b) and (c) erroneously and accordingly the other substantial question
    of law are also flows out of the impugned judgment and decree and therefore he
    has contended to allow this appeal.

    7.1. In support of his submission, Mr.Ahmed has referred following decisions:-

    (i) Binod Pathak & ors vs. Shankar Choudhary & Ors. Civil
    Appeal No. 7706 OF 2025 (Arising out of Special Leave
    Petition (C) No. 1536 of 2015)

    (ii) Shivshankara & Anr. Vs. H.P. Vedavyasa Char, reported
    in (2023) 13 SCC 1,

    (iii) Legal Heirs of Abdul Hamid & Ors vs. Ram Nagina
    Gupta & Anr reported in 2025 (4) GLT 255.

    Submission of learned counsel for the respondent:-

    8. Per contra, Mr. A.C. Sharma has raised following points for consideration of
    this Court:-

    (a) That neither the signature of the plaintiff nor the
    thumb impression can be seen in the Exhibit – 1 (Sale
    Deed No. 1011 dated 02-08-1965) exhibited by the
    plaintiff.

    Page No.# 10/15

    (b) That the plaintiff was a minor at the time of purchase
    of the Sale Deed which could be established from the
    affidavit annexed to the plaint wherein the age of
    the plaintiff is mentioned as 60 years at the date of
    presentation of the plaint (12-03-2013) and the
    plaintiff would be 11 years at the time of purchasing
    of the suit property Exhibit -1 (Sale Deed No. 1011
    dated 02-08-1965). As such the appellant was a minor
    at the time of filling of the suit.

    Defendants/respondents had stated in their written
    statements that the plaintiff was a minor at the time
    of alleged sale deed. (Section 58 of the Indian
    Evidence Act, 1872).

    (c) That the defendant No.10 died prior to filling of the
    suit, as such, the suit itself is a nullity. All
    reliefs so claimed by the plaintiff are jointly and
    severally and based on a common relief and cause of
    action.

    (d) That although the plaintiff challenged the mutation
    order dated 21-12-1967 in the name of his two
    brothers namely Khoka Mandal and Iddrish Ali.

    However, the plaintiff did not make them a party to
    the suit. (Para – 3 of the written statement). As
    such, the suit is bad for non-joinder of necessary
    parties.

    (e) Suit is barred by limitation. (Para 2 of the written
    statement). Moreover, the plaintiff did not pray for
    cancellation of the various deeds of the defendants
    inspite of it being clearly mentioned in the written
    statement. Article 27 of the Limitation Act, 1963
    will also be applicable in the instant case as the
    plaintiff failed to seek remedy within the statutory
    time.

    (f) That under the Mohammedan Law, an oral gift is
    permissible and requires no registration. Section 129
    of the Transfer of Property Act, 1882.

    Page No.# 11/15

    (g) That the appellants did not raise any substantial
    question of law on the findings of the learned
    appellate Court and therefore is not aggrieved by the
    decision of the appellate Court.

    (h) Section 115 of the Indian Evidence Act, 1872 Estoppel
    by Conduct. By Deed No. 576/1981 Idris donated land
    in favour of Durul Ullema Madrassa (Exhibit – C)
    (proforma-defendant No.1) in which the plaintiff was
    one of the witnesses.

    (i) The respondents had purchased the land and are in
    possession of the purchased land, as such, the
    defendants are bona-fide purchasers for value without
    notice and are protected under Section 19(b) of the
    Specific Relief Act, 1963 and their rights over the
    land cannot be extinguished.

    8.1. In support of his submission, Mr. Sharma has referred following decisions:-

    (i) Hemalatha (D) by LRs. vs. Tukaram (D) by LRs.

    and Others, reported in 2026 SCC OnLine SC 106;

    (ii) Chairman, State Bank of India and Another vs.
    M.J. James
    , (2022) 2 Supreme Court Cases 301;

    (iii) Smt. Uma Devi and Ors. vs. Sri. Anand Kumar
    and ors. Civil Appeal No. of 2025 (Special Leave
    Petition (Civil) No 2137 OF 2025)

    (iv) Md. Noorul Hoda vs. Bibi Raifunnisa and
    Others
    , reported in (1996) 7 Supreme Court Cases 767;

    (v) Ashok Transport Agency vs. Awadhesh Kumar and
    Another
    , reported in (1998) 5 Supreme Court Cases
    567;

    (vi) Kiran Singh and others Vs. Chaman Paswan and
    others
    . Reported in AIR 1954 SUPREME COURT 340;

    (vii) Habibur Rahman & Anr. vs. Legal Heirs of Kabal
    Page No.# 12/15

    Lia Bibi & Ors. reported in 2016 (3) GLT 127;

    (viii) Laxminarayan & Two Others vs. Jankibai & 15
    Others, of Madhya Pradesh, High Court at Indore,
    Civil Revision No. 591 of 2023,

    8.2. Having heard the submissions of learned counsel for both the parties, this
    Court has carefully gone through the petition and the documents placed on
    record and also perused the impugned order dated 24.09.2019, passed in Title
    Appeal No. 66/2017 and also the order dated 24.09.2019, passed in Misc (J) Case
    No. 115/2013 and also gone through the judgment and decree, dated
    30.06.2017, passed in Title Suit No. 58/2013 by the learned Trial Court.

    8.3. It appears that Mr. Sharma, learned counsel for the respondent, in point No.
    3 of the synopsis of the arguments has pointed out that the defendant No. 10
    died prior to the filing of the suit and as such, the suit itself is a nullity and all
    reliefs so claimed by the plaintiff jointly and severally and based on a common
    relief and cause of action are nullity.

    8.4. It is not in dispute that the defendant No. 10 died prior to filing of the suit.
    Mr. Ahmed, learned counsel for the appellants, submits that the plaintiffs have
    filed an application before the learned Trial Court. But, the same was not
    disposed of by the learned Trial Court and without any order being passed in
    respect of defendant No. 10, who suffered demise, the learned Trial Court had
    passed the judgment and decree and the same also eschewed consideration of
    the learned First Appellate Court and as such, the decree so passed against a
    dead person is a nullity.

    9. In order to appreciate the submissions of learned counsel for both the
    parties, this Court has gone through the record of the learned Trial Court, and
    this Court finds sufficient force in the submission of Mr. Ahmed, learned counsel
    for the appellants.

    Page No.# 13/15

    10. It appears that on 12.02.2014, the plaintiffs have filed an application No.
    380/2014, under Order 22 Rule 2 of the CPC, read with Section 151 of the
    same, for impleadment of legal heirs of the defendant No. 10, namely Ajirom
    Nessa, wife of the defendant No. 10, as defendant No. 10A and Amin Ahmed,
    minor son of the defendant No. 10, represented by his mother, as defendant No.
    10B. And the said petition finds reflection in the order of the learned trial court,
    dated 12.02.2014, which is read as follows:-

    O R D E R

    12.02.2014:- Advocate for the both parties are
    present.

    Issue fresh summons to the defendant No. 10. The
    plaintiff shall take steps.

    Fixing on 07.03.2014 for S.R. & N/O.
    Later, Advocate for the plaintiff has filed
    petition No. 380/2014 stating that legal heirs of
    10(a) and 10(b).

    Date as before.”

    11. But, having gone through the record of the learned Trial Court, this Court
    finds that the said petition No. 380/2014, remained unattended and without the
    same being disposed of, the learned Trial Court proceeded against the dead
    person being the defendant No. 10 and passed the impugned judgment and
    decree.

    12. The law regarding the fate of an order or decree passed against a dead
    person is well settled in a catena of decisions of Hon’ble Supreme Court. It has
    consistently been held that a decree against a dead person is a nullity. Reference
    in this context can be made in the case of Gurnam Singh (D) Thr. LRs &
    Ors. Vs. Gurbachan Kaur (D) by LRs & Others
    , reported in (2017) 13
    Page No.# 14/15

    SCC 414, wherein Hon’ble Supreme Court has held that a decree or judgment
    passed for or against a deceased person without bringing their legal
    representatives on record within the prescribed time, leading to abatement under
    Order XXII Rules 3 & 4 of the CPC, is a legal nullity (void ab initio). Once a party
    dies and no substitution occurs, the court loses jurisdiction to proceed. The
    proceedings abate and any decree rendered thereafter lacks legal validity and
    such a decree cannot be enforced and its invalidity can be challenged at any
    stage including in execution proceedings.

    12.1. Reference in this context can also be made to the case of Kiran Singh
    vs. Chaman Paswan
    , reported in AIR 1954 SC 340, wherein it is held that the
    courts lack jurisdiction over a non-existent party (dead person) and the decrees
    without jurisdiction being nullities.

    13. In view of above, this Court is of the view that the substantial question of
    law No. (iii) flows out of the impugned judgment and decree so passed by the
    learned courts below and the same has to be answered in affirmative that the
    impugned judgment and decrees, so passed by the learned courts below suffers
    from perversity for the same being passed against a dead person. In view of the
    finding of this Court in respect of substantial question of law No.(iii), the other
    two substantial questions of law are not required to be answered at this stage.

    14. In the result, this Court is inclined to set aside the impugned order dated
    24.09.2019, passed in Title Appeal No. 66/2017 and also the order dated
    24.09.2019, passed in Misc(J) Case No. 115/2013 and also the judgment and
    decree, dated 30.06.2017, passed in Title Suit No. 58/2013 by the learned Trial
    Court. This is a clear case of remand and the matters requires fresh adjudication
    after disposal of the application No. 380/2014, filed by the plaintiff, under Order
    22 Rule 2 of the CPC
    , read with Section 151 of the same, for impleadment of
    legal heirs of the defendant No. 10, namely Ajirom Nessa, wife of the defendant
    Page No.# 15/15

    No. 10, as defendant No. 10A and Amin Ahmed, minor son of the defendant No.
    10, represented by his mother, as defendant No. 10B.

    15. And accordingly, exercising the power under Order 41 Rule 23A of the CPC,
    this Court is inclined to remand the matter to the learned Trial Court to decide the
    matter afresh, after disposing of the application No. 380/2014, dated 12.02.2014.

    16. The aforementioned exercise in the considered opinion of this Court, would
    not cause any prejudice to any of the parties, rather it would serve the end of
    justice. In holding so, this Court has derived authority from a decision of Hon’ble
    Supreme Court in the case of P. Purushottam Reddy v. Pratap Steels

    Ltd. (2002) Case No.: Appeal (Civil) 679-680 of 2002

    17. The parties are directed to appear before the learned Trial Court on or
    before 10.08.2026.

    18. Registry shall urgently return the TCR to the learned trial court by a special
    messenger.

    JUDGE

    Comparing Assistant



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