Decided on September 13,2018

Ketaki Hotel Cum Rajdeep Appellant
Tina Dowerah And 2 Ors Respondents


Kalyan Rai Surana, J. - (1.) Heard Mr. S.N. Sarma, the learned senior advocate for the petitioners as well as Mr. D.C.C. Phukan, the learned advocate for the respondents.
(2.) By this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 28.02.2018, passed by the learned Civil Judge, Dibrugarh in T.S. No. 3/2017, by which the petition No. 1055/18 dated 03.01.2018 filed by the respondents- plaintiffs under the provisions of Order XXIII Rule 1(3)(a) and (b) was allowed by allowing the respondents to withdraw the suit with liberty to institute the suit afresh.
(3.) The petitioners are the defendants in TS No. 3/2017, which was filed by the respondents- plaintiffs for declaration, recovery of possession and permanent injunction. In the plaint, it was projected that the husband of the respondent No.1 was the owner of a plot of land measuring 8B-0K-3L (B-K-L is short of Bigha, Katha and Lecha) covered by Dag Nos. 115, 118, 119, 120 and 136 of P.P. No. 58 of Amolapatty Gaon, Ward, under Dibrugarh Town, Mouza- P.S. and Dist. Dibrugarh, Assam, described in Schedule-A below. The respondents No.2 and 3 are the daughters of the respondent No.1. It was stated that the predecessor- ininterest of the respondents had sold land measuring 4B-3K-18L during his lifetime in Dag Nos. 115, 118, 119 and 120 and he was in actual physical possession of remaining land measuring 3B-2K-5L. It was stated that the petitioner No.2 had purchased 0B-4K-3L land from the predecessor- in- interest of the respondents and the petitioners No.2 and 3 had jointly purchased another plot of land measuring 0B-4K-3L from the predecessor- in- interest of the respondents. It is stated in the plaint that the petitioners had taken over possession of the land forcefully without paying any consideration to their predecessor- in- interest by threatening the entire family with dire consequences, as such, the predecessor- in- interest of the respondents had to leave Dibrugarh and took shelter in a rented house at Nagaon. However, the petitioner No.2 had sent some meager amount by bank transfer towards the land value due to intervention of some local people, but due to mental shock, the predecessor- in- interest of the respondents had died on 15.06.2013. It was projected that the respondents had applied for mutation of their names in the place of their predecessor-ininterest by filing Mutation Case No. 611, 612, 613, 614 and 615/2015-16, but the said proceedings were dropped as the respondents were not in possession of the land and as the respondents had no source of income, they had appointed one Kashyap Barua as their lawful attorney to look after their land matters. Thus, it was stated that the petitioner No.2, namely, Hem Kanta Baruah had grabbed the land of the respondents including their ancestral Namghar and by amalgamating the entire grabbed land, constructed and started Kettekee Hotel Cum Rajdeep Marriage Hall thereon. It was stated that the respondents had instituted Land Grabbing Case under the Assam Land Grabbing (Prohibition) Act, 2010 which was numbered as Assam Land Grabbing Case No. 10/2016. Moreover, as the action by the petitioners had clouded the rights and interest of the respondents, hence, the suit was filed for declaration of right, title, interest and recovery of possession, for demarcation of the suit land, for issuing precept for mutating the land in the name of the respondents, for permanent injunction and other reliefs.;

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