Decided on April 20,2018

On Death Of Hemendra Nath Sarma Appellant
Dilip Kumar Sarma And 4 Ors Respondents


Prasanta Kumar Deka, J. - (1.) Heard Mr. N. Dhar, learned counsel, appearing for the review petitioners and Mr. MK Choudhury, learned senior counsel, assisted by Mr. A. Barkataki, learned counsel for the respondents.
(2.) This review application has a chequered history. The present respondents as plaintiffs way back in the year 2005 preferred a title suit which subsequently was renumbered as T.S. No. 6/2008 for declaration of right, title and interest and confirmation of possession etc. against the present petitioners as the defendants. The said suit was dismissed on 22.9.2008. T.A. No. 33/2008 was filed by the respondents which was allowed by the learned Civil Judge, Barpeta. The present petitioners as the appellants filed RSA No. 109/20011 on 26.08.2009. The second appeal was filed alongwith the Misc. Case No. 1272/2010 for condonation of delay of 56 days in preferring the same. On 5.5.2010, the said petition was moved and notices were issued to the respondents. The said appeal alongwith the delay condonation petition was filed in total by 13 number of applicants who are the defendants in the suit. It would not be out of place to mention that signatures of the appellants other than the applicant No. 5 were disputed insofar as the signatures of the rest of the applicants are concerned in both the vokalatnama and the petition for delay condonation. Vide order dated 4.2.2011, in order to verify and to decide the genuineness of the signatures the lower court records of the suit including that of the first appellate court were called for, by special messenger. Vide order dated 9.3.2011, the records so called for were received and the matter was listed for hearing on the next date i.e. on 10.3.2011, but owing to absence of the counsel appearing on behalf of the appellants/applicants, the matter could not be taken up and thereafter the same was listed on 15.3.2011.
(3.) On 15.3.2011 the present respondents again raised a dispute with regard to genuineness of the signatures of the applicants other than the applicant Nos. 1 and 5. The applicant No. 5, Sri Mukul Sarma filed an affidavit- in- reply stating that the signatures of the other applicants were genuine. Accordingly other than the applicant Nos. 1 and 5 rest of the applicants were directed to file their individual affidavit supporting the fact as to whether they jointly filed the appeal and the application seeking condonation of delay as well as the vokalatnama. It was directed that such affidavit be sworn before the Oath Commissioner in the High Court within a period of 2 weeks. On 4.4.2011, it was brought to the notice of the court by the learned counsel appearing on behalf of the petitioners that as per direction dated 15.3.2011, the applicant Nos. 3, 7, 8, 9, 11, 12 and 13 sworn their respective affidavits and filed the same. However, applicant Nos. 2, 6 and 10 were yet to file the affidavit and applicant No. 4 being on election duty, he prayed some more time to file affidavit and the learned counsel sought for two weeks time. On the same date, it was also raised by the learned counsel appearing on behalf of the respondents that in the affidavit annexed to the delay condonation petition, it was mentioned that the petitioners were all by profession cultivators and from the submission of the learned counsel appearing on behalf of the petitioners, the applicant No. 4 was not a cultivator as he was on election duty. This court accordingly asked the applicant No. 4 to clarify in that aspect of the matter in the affidavit directed to be sworn by him.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.