Gauhati High Court
RSA/167/2017 on 30 March, 2026
1
GAHC010024292017
2026:GAU-AS:4947
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RSA No. 167/2017
On the Death of Basiron Nessa her legal
heirs
1. Haji Shaheb Ali Mollah @ Hazi Saheb Ali
S/O Late Mofez Uddin
Struck Off Vide Hon'ble Courts Order
Dated 03.03.2025
2. Baseruddin
S/O- Haji Shaheb Ali Mollah
3. Taseruddin @Toseruddin
S/O- Haji Shaheb Ali Mollah
4. Roffiqul Islam @Rofiqual Islam
S/O- Haji Shaheb Ali Mollah
5. Naseruddin
S/O- Haji Shaheb Ali Mollah
Appellant No. 1 to 5 are resident of-
Village - Kallyanpur, P.O. - Baguan
District- Goalpara, Pin-783129
6. Rahaton Nessa @Rahtul Nessa
W/O- Rufchan Ali
Village - Abrarbhita, P.O. Baguan
District - Goalpara, Pin-783129
7. Shohida Khatun
W/O- Abul Hussain
Village - Ghugudoba, P.O- Rajmita,
District - Goalpara, Pin-783129
RSA 167/2017 Page 1
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......Appellants
-Versus-
On the Death of Abdul Hamid his legal heirs and
Others namely
1. Struck Off Vide Hon'ble Courts Order Dated
03.03.2025
2. Jobeda Khatun
D/O Late Abdul Hamid
W/O Anower Hussain Village Parlitol
P.O. Chalantapara PS Jogighopa
District Bongaigaon Pin 783388
3. Jahanara Khatun
D/O Late Abdul Hamid
W/O Taher Ali
Village Karichala PO Markula
PS Baguan District Goalpara Pin 783129
4. Nur Jahan Bewa @ Nur Jahan
S/O Late Abdvill Panikheti
PO Ramharichar PS Baguan
District Goalpara Pin 783101
5. Jahangir
S/O Late Abdul Hamid
6. Abdul Jalil
S/O Late Abdul Hamid
Respondent No. 1.5 And 1.6 are
R/O Village Pachim Pandoba
P.O. Markula P.S. Baguan
District Goalpara Pin 783129
7. Nur Furza
D/O Late Abdul Hamid
W/O Faijal Hoque
8. Nur Nehar
D/O Late Abdul Hamid
W/O Faijal Hoque
9. Basa Khatun Bewa @ Basa Khatun
D/O Abdul Hamid
W/O Late Rohim Uddin
Respondent No. 1.7 And 1.8 are resident of Village
Panikheti
PO Ramharichar PS Baguan
RSA 167/2017 Page 2
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District Goalpara Pin 783101
10. Anowara Khatun Bewa @ Anoewara Khatun
W/O Late Abdul Hamid
11. Joynal Abedin
S/O Late Abdul Hamid
12. Moynal Hoque
S/O Late Abdul Hamid
Respondent No. 1.9 And 1.11 are
Resident of Village Pachim Pandoba P.O. Markula
P.S. Baguan District
Goalpara Pin 783129
13. Khodeza Khatun
D/O Late Abdul Hamid
W/O Bakker Ali
Village Konkair Pachimpara
PO and PS Baguan
District Goalpara Pin 783129
14. Sokina Khatun
D/O Late Abdul Hamid
W/O Ruhul Amin
Village Dosora Ambari
PO and PS Baguan
District Goalpara Pin 783129
15. Kulsum Nessa
D/O Late Abdul Hamid
W/O Sahar Ali Village Simlabari
PO Simlabari PS Baguan
District Goalpara Pin 783129
16. Rabia Khatun
D/O Late Abdul Hamid
W/O Samesh Ali
Village Poitari
P.O. Joybhum P.S. Baguan
District Goalpara Pin 783129
17. Babul Hoque
S/O Late Abdul Hamid
Village Pachim Pandoba
P.O. Markula PS Baguan
District Goalpara Pin 783129
On the Death of Late Aber Uddin his legal heirs
namely
RSA 167/2017 Page 3
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1. Struck Off Vide Hon'ble Courts Order Dated
03.03.2025
2. Hobibar Rahman @ Habibar Rahman
S/O Late Aber Uddin
Resident of Village Dosora Ambari
PO Balarbhita P.S. Baguan
District Goalpara Pin 783129
3. Nur Islam
S/O Late Aber Uddin
Village Markula
PO Markula PS Baguan
District Goalpara Pin 783129
4. Nazrul Islam
S/O Late Aber Uddin
Resident of Village Dosora Ambari
PO Balarbhita P.S. Baguan
District Goalpara Pin 783129
5. Nureza Khatun
D/O Late Aber Uddin
W/O Romjan Ali
Village Ram Hari Char
PO Ramhari Char P.S.
Panchorat District
Goalpara Pin 783101
6. Shahab Uddin @ Sahab Ali
S/O Late Sabar Uddin
7. Shaha Alom @ Shah Alom
S/O Late Sebar Uddin
Resident of Village - Dosora Ambari
Village Dosora Ambari
PO Balar Bhita
District Goalpara Pin 783129
8. Sobina Khatun
D/O Late Saber Uddin
W/O Iman Ali
Village Chalakura
PO Takimari PS Lakhipur
District Goalpara Pin 78312
......Respondents
RSA 167/2017 Page 4
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For Appellants : Ms. R. Choudhury, Advocate
For Respondents : Mr. N. Choudhury, Advocate
Date of Judgement 19.12.2025
Reserved
Date of Judgment : 30.03.2026
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Ms. R. Choudhury, the learned counsel for the appellants.
Also heard Mr. N. Choudhury, the learned counsel for the
respondents.
2. This appeal under Section 100 of the Code of Civil Procedure,
1908, has been filed by the appellants, who are the legal heirs of
the original plaintiff namely, Basiron Nessa, impugning the
judgment and decree dated 12.04.2017, passed by the learned
Civil Judge, Goalpara, in Title Appeal No. 04/2014, whereby the
judgment and decree dated 04.06.2013, passed by the Court of
learned Munsif No.1, Goalpara in Title Suit No. 23/2009, was
upheld and the appeal was dismissed. The Trial Court had also
dismissed the suit filed by the predecessor in interest of the
present appellants.
3. The facts relevant for consideration of the instant appeal, in brief,
are that the predecessor in interest of the present appellants,
namely, Basiron Nessa, had instituted a suit against the legal
heirs of late Md. Ali Haji, (who are the predecessor in interest of
RSA 167/2017 Page 5
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the present respondents), claiming partition of the ancestral land
of the plaintiff and defendants, as per the Islamic law of
succession.
4. The land of which partition was claimed in the plaint, measured
approximately 40 bighas, 3 kathas and 1 lecha, left by the
deceased father of the plaintiff, namely, Md. Ali Haji, and which
are more specifically mentioned in Schedule A, B, C and D of the
plaint.
5. It was pleaded in the plaint that at the time of his death, in the
year 1977, deceased Md. Ali Haji left behind him his wife Sebaton
Nessa, his deceased sons, namely, defendants Nos. 1 and 2, the
only daughter, namely, plaintiff, and the legal heirs of another
son, Sebar Uddin, who had expired. The legal heirs of Sebar
Uddin were impleaded in the suit as defendants Nos. 3, 4, 5 and
6. It was pleaded that the plaintiff being daughter of the
deceased Md. Ali Haji was entitled to 1/7th share of his property
by way of inheritance. It is also contended in the plaint that
though, the plaintiff was entitled to get the land measuring 5
bigha and 7 lechas out of the property of her deceased father,
however, prior to death of her mother Sebaton Nessa, she was
given a plot of land measuring 1 bigha, 4 kathas and 3 lechas, at
Markula. The said land has been fully described in Schedule D of
the plaint. She was also given another plot of land at Kadotika,
measuring about 1 bigha, which is shown in Schedule “E” of the
plaint. It is stated in the plaint that at that time, she did not
claim the remaining portion of the share of land to which she is
entitled to, as her mother was alive at that time.
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6. Thereafter, in the year 1987, when her mother Sebaton Nessa
died, the plaintiff approached the defendants to seek partition of
the entire land, so that the land to which the plaintiff was
entitled to may be given to her. However, it is alleged in the
plaint that in the month of February 2007, the defendants jointly
dispossessed the plaintiff, even from the land shown in Schedule-
D and E, which were given to her earlier. Under the aforesaid
circumstances, the plaintiff, Basiron Nessa, approached the Court
of learned Munsiff No. 1, Goalpara, by filing the Title Suit No.
23/2009, seeking partition of the ancestral land of her father and
mother, according to the shares to which she was entitled to.
7. The defendants contested the suit by filing written statement
making usual defence therein like the maintainability of suit,
misjoinder of cause of action, as well as joinder of necessary
parties, amongst other defences. The defendants also took plea
that their father, Md. Ali Haji, never owned and possessed the
land measuring 40 bighas 3 kathas and 1 lecha, as alleged by the
plaintiff in her plaint. It is also stated in the written statement
that the plaintiff has not specifically described the area of land
with dag number and patta number which were recorded in the
names of her parents and as such it was contended that on the
basis of mere speculation, the land cannot be partitioned. The
allegation of dispossession of the plaintiff from Schedule-D and E
land has also been denied by the defendants in their written
statement.
8. On the basis of the pleadings of the parties, the Trial Court
framed the following issues:
RSA 167/2017 Page 7
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i. Whether there is any cause of action for the suit?
ii. Whether the suit is maintainable in its present form and
manner?
iii. Whether the plaintiff has paid the proper court fees.
iv. Whether the plaintiff is entitled to any share in the suit
land?
v. Whether the plaintiff is entitled to partition in the suit
land?
vi. To what relief the parties are entitled to?
9. In support of her case, the plaintiff examined three witnesses
(PWs), whereas the defendants examined four witnesses (DWs)
in support of their case. However, by judgment dated
04.06.2013, the Trial Court dismissed the suit filed by the
plaintiff. While dismissing the suit the Trial Court has held that
the suit is barred by Section 34 of the Specific Relief Act, 1963
and is not maintainable in the form and manner in which it has
been filed. It also reached a conclusion that since the plaintiff
herself has not been able to disclose the total area of the suit
land over which she has filed partition suit and has also unable to
show that the aforesaid land belongs to her parents, she is not
entitled to the reliefs claimed in the plaint.
10. Being aggrieved by the judgment and decree passed by the Trial
Court, the plaintiff Basiron Nessa preferred an appeal under
Section 96 of the Code of Civil Procedure, 1908, before the Court
of learned Civil Judge, Goalpara, impugning the judgment and
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decree of the Trial Court. The said appeal was registered as Title
Appeal No. 04/2014. During the pendency of the aforesaid
appeal, the original plaintiff expired and thereafter, her legal
heirs, i.e., the present appellants were substituted in her place in
the aforesaid appeal. However, the First Appellate Court, by its
judgment and decree dated 12.04.2017, dismissed the appeal
filed by the present appellants and affirmed the judgment and
decree of the Trial Court.
11. Thereafter, on being aggrieved by the decision of the First
Appellate Court, the appellants have approached this Court by
filing the instant Regular Second Appeal. While admitting the
appeal, by its order dated 31.05.2017, this Court had formulated
following substantial questions of law in this appeal:
i. Whether the learned Court below committed wrong in
dismissing the suit of the appellant/plaintiff on the face
of shares mentioned under Mohammedan law for
daughters, that too on the face of admission that the
plaintiff/appellant is one of the legal heirs of the
predecessor in interest of the parties to the suit.
ii. Whether the judgment and decree passed by both the
court below are perverse, both on appreciation of
materials on record and the legal position.
12. Ms. R. Choudhury, the learned counsel for the appellants has
submitted that both the courts below have committed perversity
in dismissing the suit of the plaintiff even after clear admission by
the defendants in their written statement, whereby, it was
RSA 167/2017 Page 9
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admitted that the appellant/plaintiff was the daughter of late Md.
Ali Haji and as such, there could not be any dispute that as per
Islamic law, she is entitled to get a share to the extent of 1/7th
portion in the property left by her deceased parents. She submits
that when it was admitted by the defendants that she was given
land mentioned in Schedule D and Schedule E, i.e., total of 5
Bighas 4 Kathas 3 Lechas in her share, there remains no doubt
that her parents would have been possessing more than 40
Bighas of land as she is entitled to get only 1/7th share of the
property of her deceased father.
13. The learned counsel for the appellants submits that during the
pendency of the first appeal, the plaintiff had filed an application
under Order 41 Rule 27 of the Code of Civil Procedure, 1908, for
allowing the plaintiff to adduce additional evidence at appellate
stage to prove the area of land which was owned by her
deceased father.
14. She submits that the First Appellate Court, by its order dated
29.06.2016, passed in the Title Appeal No. 04/2014, had
observed that the application for adducing additional evidence at
appellate stage filed by the plaintiff would be decided at the time
of final hearing of the appeal. However, while passing the
impugned judgment in the appeal filed by the plaintiff, nothing
was discussed about the aforesaid petition. Hence, she submits
that the conclusion arrived at by the First Appellate Court while
affirming the judgment and decree of the Trial Court is perverse.
RSA 167/2017 Page 10
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15. The learned counsel for the appellants has submitted that in view
of the admission by the defendants that she is the daughter of
late Md. Ali Haji, as well as the fact that she was given 5 bighas
4 kathas and 3 lechas of land, it was not required by her to prove
that her father owned more than 40 bighas of land.
16. The learned counsel for the appellants submits that in view of
the admission of the defendants regarding her status as a legal
heir of the deceased Md. Ali Haji, it is not required for her to seek
a declaration of her title or the suit property and prayer for mere
partition may be made under the facts and circumstances of the
case.
17. The learned counsel for the appellants submits that by not
seeking any relief for declaration of title by the plaintiff, the
defendants were not prejudiced in any manner. She submits that
under the facts and circumstances of this case, the suit for
partition is maintainable without seeking any declaration of right,
title and interest over the suit property. She submits that the First
Appellate Court as well as the Trial Court committed perversity in
ignoring the admitted facts and dismissing the suit under Section
34 of the Specific Relief Act, 1963. She submits that the bar in
the Section 34 of the Specific Relief Act, 1963 is applicable only
in those declaratory suits where a declaration is sought for
without seeking further relief than a mere declaration, even
where the plaintiff was able to seek further relief than a mere
declaration.
RSA 167/2017 Page 11
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18. The learned counsel for the appellants further submits that the
suit filed by the plaintiff was a suit for partition and in view of the
admitted fact that she is the daughter of late Md. Ali Haji, for not
seeking declaration of her title over the suit property, the suit
cannot be dismissed. In support of her submissions, the learned
counsel for the appellants has cited the following rulings:
i. Santokh Singh Vs Mahant Iqbal Singh reported in
(2000) 7 SCC 215.
ii. Gautam Sarup Vs. Leela Jetly and Others reported in
(2008) 1 SCC 85.
iii. Rajiv Ghosh Vs. Satyanarayan Jaiswal, reported in
(2025) 5 SCC 485.
19. The learned counsel for the appellants has also submitted that
the mother of the plaintiff, namely Sebaton Nessa, had also died
in the year 1987 and the defendants have refused to give share
to the plaintiff to which she is entitled to out of the property left
by her deceased mother. She submits that this fact is proved by
the witness of the defendant side itself namely, PW-2, Jahangir,
who had deposed during his cross-examination that no partition
took place after the death of the mother of the plaintiff namely,
Sebaton Nessa.
20. The learned counsel for the appellant, submits that the Trial
Court had erred and committed perversity in dismissing the suit
for partition totally on irrelevant consideration and in view of the
admissions of the defendants, the First Appellant Court’s
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judgment may be set aside and the suit of the plaintiff may be
decreed on the basis of admission made by the defendants and
the shares to which she is entitled to may be given to her. In
alternative, she has made a prayer for remanding the case to the
First Appellate Court to decide the application filed by the
appellant under Order 41 Rule 27 of the Code of Civil Procedure,
1908 and thereafter, allowing the appellant to adduce additional
evidence and decide the matter afresh for the ends of justice.
21. On the other hand, Mr. N. Choudhury, the learned counsel for the
respondents has submitted that the Trial Court as well as the
First Appellate Court has rightly dismissed the suit of the plaintiff
as she failed to relieve the burden cast on the plaintiff seeking
the relief of partition of the suit property. He submits that though
the defendants admitted the fact that the plaintiff is the daughter
of late Md. Ali Haji, however, the plaintiff has failed to prove the
area and specification of the properties mentioned in the
schedule of the plaint. The learned counsel for the respondents
submits that rather during cross examination while deposing as
PW-1, the plaintiff had categorically stated that she is unaware
about the total area of the suit land over which she has claimed
partition.
22. As such, he submits that the plaintiff has failed to relieve the
initial burden of proving the area of the land over which she was
seeking the relief of partition. He further submits that though,
the plaintiff has also claimed partition in respect of the shares of
land which was left behind by her deceased mother Sebaton
Nessa, however, no specification of the property, which fell in the
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share of her deceased mother over which, she was also seeking
partition has been mentioned in the plaint. As such, he submits
that the Trial Court as well as the First Appellate Court were
correct in dismissing the claim of the plaintiff as her pleadings
were not specific about the land over which she was claiming
partition.
23. The learned counsel for the respondents has submitted that it
has been stated by the defendant as well as the plaintiff has
herself admitted in her claim that the plaintiff has been given
share in the landed properties of deceased Md. Ali Haji which has
been mentioned in Schedule D and E. Hence, a suit for the
second partition is not maintainable anymore. He submits that
the witnesses for defendants have deposed regarding the fact
that about 30 years ago the land of the late Md. Ali Haji has
already been partitioned in which the plaintiff also given her
share. Hence, he submits that the suit by the plaintiff is not
maintainable and the Trial Court as well as the First Appellate
Court committed no perversity.
24. He submits that the DW-3 namely, Rustam had deposed during
his cross-examination that after the death of Sebaton Nessa,
plaintiff has been given land both in Markula Village and Kadotika
Village, which shows that even after death of her mother, the
plaintiff got share in the property left by her deceased father and
mother.
25. The learned counsel for the respondents further submits that the
evidence available on record is sufficient to dismiss the suit of the
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plaintiff under Order 41 Rule 24 of the Code of Civil Procedure,
1908. He submits that this is a case where evidence on record is
sufficient to determine the case finally and there is no need of
remanding the same back to the First Appellate Court. He further
submits that the plaintiff has also failed to make out a case for
allowing her to adduce additional evidence at appellate stage and
therefore, the prayer of the plaintiff made under order 41 Rule 27
of the Code of Civil Procedure, 1908 was rightly not considered
by the First Appellate Court. In support of his submission, the
learned counsel for the respondents has cited following rulings:
i. Union of India Vs. Ibrahim Uddin & Another reported
in (2012) 8 SCC 148ii. Shivakumar & Others Vs. Sharanabasappa & Others
reported in (2021) 11 SCC 277.
iii. Sirajudheen Vs. Zeenath and Another reported in
2023 SCC online SC 196.
26. The learned counsel for the respondents has therefore,
submitted that the instant appeal is devoid of any merit and no
perversity has been committed by the Trial Court or the First
Appellate Court and accordingly, prayed for dismissing the appeal
with cost.
27. I have considered the submissions made by learned counsel for
both sides and have gone through the materials available on
record. I have also gone through the rulings cited by learned
counsel for both sides in support of their respective submissions.
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28. At the outset, it is pertinent to mention herein that the instant
appeal is against concurrent findings of the First Appellate Court
as well as the Trial Court whereby the suit of the appellant was
dismissed mainly on two counts:
i. That the plaintiff failed to seek any relief of declaration of
title in respect of the property over which she has sought
for the partition.
ii. She also failed to prove the area of landed property owned
by her parents.
29. Both the courts held that the suit of the plaintiff is barred by
Section 34 of the Specific Relief Act, 1963. The First Appellate
Court also held that the suit of the plaintiff is also barred by
Section 97 of the Assam Land and Revenue Regulation, 1886. It
also declined to remand back the suit to the Trial Court under
Order 41 Rule 23 A of the Code of Civil Procedure, 1908 as the
Appellate Court was of the view that the Trial Court did not
committed any illegality regarding justifying any interference in
the judgment and decree passed by the Trial Court.
30. It also held that since the relief of declaration of title was not
prayed for by the plaintiff, hence, even if the suit is remanded
back, the plaint may be required to be amended and same
cannot be done in the appellate stage. The First Appellate Court
held that the suit cannot be remanded back to the Trial Court for
facilitating the plaintiff to cure the formal defect of seeking relief
of declaration of title over the suit land by amending the plaint.
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31. If we peruse the judgment of the Trial Court, which was
delivered on 04.06.2013 in Title Suit No. 23/2009, it appears that
the Trial Court dismissed the suit mainly on the basis of negative
finding on the Issue Nos. 4 and 5 i.e., whether the plaintiff is
entitled to any share in the suit land merely on the ground that
she failed to prove the quantum of the suit land over which she
was seeking partition and no documents relating to revenue
records were exhibited by the plaintiff.
32. If we peruse the substantial questions of law, which were
formulated by this Court on 31.05.2017, while admitting the
instant appeal, it appears that both the questions revolve around
the question of perversity by the Trial Court as well as the First
Appellate Court in dismissing the suit of the plaintiff.
33. As regards the first substantial question of law is concerned, it
appears that the Trial Court as well as the Appellate Court have
not discussed the question of entitlement of the plaintiff over her
parents’ property. On perusal of the judgment passed by the Trial
Court, it appears that the Trial Court, while deciding the Issue
Nos. 4 and 5, which relates to the entitlement of plaintiff to any
share in the suit land, as well as to whether she is entitled to
claim partition of the suit land. The basis of her entitlement, i.e.,
being the daughter of the late Md. Ali Haji, was not considered
by both the Courts. Rather, it decided the issue against the
plaintiff merely on the ground that she failed to prove as to what
was the total area of the suit land over which the partition has
been claimed.
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34. On perusal of the records, it appears that the original plaintiff as
well as the present appellants, who were substituted as
appellants in place of the original plaintiff in the first appeal, had
filed applications which were registered as Petition No. 786/2015
and Petition No. 132/2016, wherein prayer under Order 41 Rule
27 of the Code of Civil Procedure, 1908 was also made for
allowing the plaintiff to adduce additional evidence at appellate
stage in order to prove some original documents relating to the
suit land.
35. Though, the First Appellate Court by its order dated 29.06.2016
passed in Title Appeal No. 04/2014 observed that the petition will
be heard along with the final hearing of the appeal, however, in
the impugned judgment passed in the first appeal, apart from
mentioning about the petition filed under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 by the appellants nothing has been
discussed as to whether the said application was allowed or
dismissed. Even if, by way of implication, it is deemed to have
been rejected, in that case also it suffers from the vice of
absence of any reasons for doing so.
36. This Court is of the considered opinion that the First Appellate
Court ought to have considered and given a finding on the prayer
of the appellants under Order 41 Rule 27 of the Code of Civil
Procedure, 1908 for adducing additional evidence at appellate
stage. The grounds taken in the applications filed by the
appellants as well as their predecessor in interest i.e., the original
plaintiff in her petition, which was numbered as Petition No.
786/2015, are mainly that the plaintiff had no personal
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knowledge about the existence of records of right in her name, in
respect of the suit land in spite of her due diligence. The said
plea has never been considered or discussed by the First
Appellate Court, either at the time when the application was filed
or at the final hearing in the impugned judgment itself.
37. Hence, considering the first appeal, without considering the
application under Order 41 Rule 27 of the Code of Civil
Procedure, 1908 filed by the appellant during the pendency of
the first appeal, brings an element of perversity in dismissing the
first appeal. If the First Appellate Court would have allowed the
said application, the final outcome of the first appeal could have
been different, which this Court is not in a position to infer now.
38. This Court is, therefore, of the considered opinion that rendering
of the judgment in the first appeal by the First Appellate Court,
without even considering the application filed by the appellant
under Order 41 Rule 27 of the Code of Civil Procedure, 1908
brings an element of perversity in arriving at the final outcome in
the appeal, due to the possibility of exclusion of material
evidence. Same can be cured only by considering the
applications filed by the appellants under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 (Petition No. 786 dated 19.08.2015
and Petition No. 132 dated 14.03.2016), afresh by the Appellate
Court.
39. For the aforesaid reasons, the case is to be remanded back to
the First Appellate Court to decide the aforesaid applications and
thereafter, decide the appeal giving afresh judgment depending
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upon the outcome of the decision of the applications filed by the
appellants under Order 41 Rule 27 of the Code of Civil Procedure,
1908.
40. One another pertinent matter, which needs to be clarified here
that though, the First Appellate Court in Paragraph No. XIII of
the impugned judgment has observed that the Civil Court cannot
partition the properties as there is specific bar under Section 97
of the Assam Land and Revenue Regulation, 1886. However, this
Court is of the considered opinion that the partition dealt with by
Section 97 of the Assam Land and Revenue Regulation, 1886, is
the partition of a revenue paying estate, whereas the partition
suit filed by the appellants is regarding ascertaining the extent of
shares in the suit land, amongst the legal heirs of the deceased
parents of the plaintiffs. In a partition suit the extent of share to
which the plaintiff is entitled to in a property, which is jointly
owned by the plaintiffs and defendants is considered. Whereas,
in partition under Section 97 of the Assam Land and Revenue
Regulation, 1886, the division of revenue paying estate into one
or more such estates amongst the joint pattadars is made by the
Revenue Authority. Hence, a suit for partition before a Civil Court
and a partition proceeding under Section 97 of the Assam Land
and Revenue Regulation, 1886, are two distinct procedures dealt
with by different authorities the former is dealt with by a Civil
Court whereas later is dealt with by a Revenue Authority. Hence,
the observation made by the First Appellate Court that the suit
for partition is barred under Section 97 of the Assam Land and
Revenue Regulation, 1886, is not correct.
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41. As the defendants have not disputed the status of the plaintiff
Basiron Nessa as the daughter of late Md. Ali Haji and that she is
entitled to inherit the extent of share allowed to a daughter as
per Islamic rights, hence, the suit filed by the plaintiff cannot be
regarded as hit by the proviso to Section 34 of the Specific Relief
Act, 1963, as the said proviso operates as bar for the Court in
making a declaration in granting a relief of declaration where the
plaintiff has not sought further relief than a mere declaration of
title and not vice versa. Hence, this Court is of considered
opinion that the suit of the plaintiff ought not to have been
dismissed by holding that same is barred by Section 34 of the
Specific Relief Act, 1963.
42. In view of these discussions made in the following paragraphs
and reasons stated thereon this Court is of considered opinion
that the decision of the Trial Court as well as the First Appellate
Court exhibits a clear strain of perversity and as such, the
impugned judgment is set aside.
43. The case is remanded back to the First Appellate Court with a
direction to consider the application filed by the original plaintiff,
which was registered as Petition No. 786/2015 under Order 41
Rule 27 of the Code of Civil Procedure, 1908 for allowing the
plaintiff to adduce additional evidence at appellate stage. After
considering the said application and depending on the outcome
of the such consideration the Appellate Court shall proceed with
the appeal and dispose of the appeal by rendering a fresh
judgment taking into consideration all the materials available
before the Court on record.
RSA 167/2017 Page 21
22
44. Send back the records of Trial Court as well as the Appellate
Court along with a copy of this judgment to the First Appellate
Court i.e., the learned Civil Judge, Goalpara immediately.
45. Since both the parties are represented by their engaged counsel,
they are directed to appear before the First Appellate Court i.e.,
the learned Civil Judge, Goalpara either in person or through
their engaged counsel on 18.05.2026 in Title Appeal No.
04/2014 so that the First Appellate Court may comply with the
directions given in this judgment.
46. This Regular Second Appeal is, accordingly, disposed of.
JUDGE
Comparing Assistant
Amita Digitally signed
by Amita Sharma
Sharma Date: 2026.04.06
16:35:35 +05'30'
RSA 167/2017 Page 22