LAILA KHATOON AND ANR, W/O LATE TAIZUDDIN AHMED Vs. HIRA HUSSAIN AND 2 ORS, S/O LATE SALIMA KHATOON
LAWS(GAU)-2018-8-66
HIGH COURT OF GAUHATI
Decided on August 20,2018

Laila Khatoon And Anr, W/O Late Taizuddin Ahmed Appellant
VERSUS
Hira Hussain And 2 Ors, S/O Late Salima Khatoon Respondents

JUDGEMENT

Kalyan Rai Surana, J. - (1.) Heard Mrs. R. Choudhury, the learned advocate for the review petitioners as well as Mr. G.N. Sahewalla, the learned senior advocate, assisted by Mr. A.K. Sahewalla, the learned advocate for the respondents.
(2.) By this petition under Order XLVII Rule 1 read with section 114 CPC, the petitioners are seeking review of the judgment and order dated 19.06.2017, passed by this Court in CRP No. 124/2014. By the said order revision filed by the respondents herein under Article 227 of the Constitution of India was allowed.
(3.) As this Court had elaborately dealt with the facts in the said CRP No. 124/2014, this Court has refrained from narrating the entire facts for avoiding burdening of this order with repetition. The brief facts necessary for the purpose of this order are as follows:- a. One Smt. Salima Khatoon (since deceased) was the plaintiff in T.S. No. 63/1980. which was tried in the court of Munsiff, Jorhat. There were nine defendants in the suit, namely, Tamizuddin Munshi, Syed Jalabuddin Ahmed, Syed Sahebjada Ahmed, Syed Mstan Ahmed, Sri Nirmal Ch. Ghosh, Sri Subhash Ch. Sarkar, Sri Amit Sarkar, Syed Noor Ahmed @ Maju, Smti. Khairunnissa. The suit was for declaration of right, title, interest and possession in respect of premises described in Schedule-A of the plaint, which consisted of 3 rooms within a definite four boundary. b. Late Sagra Khatoon, who was the mother of the plaintiff, died on 06.01.1980, leaving behind the plaintiff (daughter), Defendant No.1 (son), Defendant No.8 (son), defendant No.9 (daughter), and defendants No.2, 3 and 4 (grandsons, being sons of defendant No.1). During her lifetime, Sagra Khatoon had gifted away the three suit rooms along with land to the plaintiff by executing a Gift Deed which was registered as Deed No. 3758 dated 15.09.1979. The plaintiff had accepted the gift and got the possession. c. The learned Munsiff, Jorhat had decreed the said T.S. No. 63/1980 on 18.08.1982 in favour of the plaintiff allowing the eviction of defendants No. 1 to 4 from the suit premises described in Schedule-A of the plaint. d. The defendant No. 1, namely, Tamizuddin Ahmed preferred an appeal against said decree, which was registered as T.A. No. 53/1982. The said appeal was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 02.04.1985. The said defendant No. 1 preferred a Second Appeal, which was registered before this Court as S.A. No. 100/1985. During the pendency of the said appeal, the defendant No. 1 had died and he was substituted by the present petitioners, namely, Laila Khatun and Mehtab Ahmed. The said S.A. No. 100/1985 was also dismissed by this Court vide judgment dated 07.08.1992. This was the end of the first round of litigation. e. The application for execution of the decree filed by the respondents herein was registered as T. Ex. Case No. 19/2004, wherein the petitioners had filed an objection under Section 47 of the CPC, which was dismissed by the learned executing Court by order dated 15.10.2004. CRP No. 243/2004 filed by the petitioners to challenge the said order dated 15.10.2004, was dismissed by this Court by judgment and order dated 10.12.2004. On receipt of possession, the said decree dated 18.08.1982 stood satisfied and the proceedings of T. Ex. Case No. 19/2004 was closed on satisfaction. This ended the second round of litigation. f. The petitioners then filed an application under Section 144 read with Section 151 CPC, stating that the Civil Nazir had handed over a fourth room as well as a two storied RCC building, as such, the execution was carried out in excess of decree. Hence, prayer for restitution of the properties which were given in excess of the decree was made, which was registered as Misc. (J) Case No. 2/2005. The said case was dismissed by order dated 12.04.2005, inter-alia, holding that the decree was legally and lawfully executed by the Civil Nazir with the help and assistance of the concerned Lat Mandal and Police in presence of the petitioners and other persons by taking all care to give possession as per four boundary shown in the schedule of warrant issued to the Bailiff. This laid to rest the third round of litigation. g. After about two years, the petitioners had filed T.S. No. 91/2007, praying for declaration of right, title, interest and recovery of khas possession of the two storied building, which was dismissed by the learned Munsiff No.2, Jorhat vide judgment and decree dated 27.01.2009. The petitioners preferred an appeal, which was registered as T.A. No. 9/2009, which was dismissed by the learned Civil Judge, Jorhat by judgment and decree dated 30.05.2009. This ended the fourth round of litigation. h. The petitioners had then started the fifth round of litigation by filing a second application under Section 47 read with Section 151 of the CPC in connection with T.A. No. 19/2004, which was numbered as Misc.(J) Case No. 46/2009. By the said petition, the petitioners had prayed for restoration and possession over the two storied RCC building described in Schedule-B of the said petition by evicting the respondents. The learned Munsiff No. 1 by the impugned order dated 19.03.2014 allowed the said Misc.(J) Case No. 46/2009, directing the restoration of the possession of the RCC building to the petitioners. Challenging the said order, the respondents had filed CRP 124/2014, which was allowed by this Court by the order dated 19.06.2017.;


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