Gauhati High Court
Mohammad Ahiya vs Musstt. Jerina Khatoon & Ors on 2 February, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 262/2008
Mohammad Ahiya,
S/o Late Taher Ali,
Resident of H. Baruah, Fancy Bazar,
Guwahati, District-Kamrup, Assam. ... Petitioner/Plaintiff.
VERSUS
1. Musstt. Jerina Khatoon.
2. Shri Abul Ashar.
3. Shri Abul Naser.
4. Shri Mantu Sarkar.
5. Shri Santu Sarkar.
6. Shri Rantu Sarkar.
[Respondent No.1 is the wife and Nos. 2 to 6 are all the sons of
Late Nurul Anowar, all are residents of Hem Baruah Road, C/o M/s Assam Biscuit Factory, Fancy Bazar, Guwahati-1, District-Kamrup, Assam.]
7. Shri Jafar Zarnan.
8. Md. Talal Mahammad @ Tapan.
9. Md. Parvez Muhammad @ Pradip Respondents 8 & 9 are sons of Jehirul Hoque Sarkar Both are residents of Hem Baruah Road, C/o M/s Assam Biscuit Factory, Fancy Bazar, Guwahati-1, District-Kamrup, Assam.
...Respondents
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
For the petitioner : Mr. S. Ali.
Mr. R.K. Bhuyan,
Mr. H. Kashyap
Mr. A. Iqbal ... Advocates.
For the respondents No.3 : Mr. P.K. Deka,
Mr. R. Sarma,
Mr. H. Deka,
Mr. M. Buragohain. ... Advocates.
Date of Order : 2.2.2015.
CRP No.262/2008
Page 1 of 4
2
JUDGMENT AND ORDER
Heard Mr. A. Iqbal, the learned Counsel appearing for the petitioner (plaintiff). The contesting respondent (defendant No.3) is represented by the learned Counsel Mr. P.K. Deka.
2. Claiming to be the absolute owner of the room bearing Municipal Holding No.113 in Ward No.20 of the Guwahati Municipal Corporation at Hem Barua Road, Fancybazar, Mohammad Ahiya filed the ejectment suit i.e. Title Suit No.101/1977 which was renumbered as Title Suit No.19/1982 and then again Title Suit No.268/1997. The default in rent was alleged and thus apart from ejectment, arrear rent was also claimed by the plaintiff. The ejectment was sought also for bona fide requirement.
3. However the contesting defendants challenged the ownership of the plaintiff for the suit premises and claimed that the one Sureja Khatoon (since deceased) the maternal aunt of the plaintiff is the owner of the tenanted premises under Holding No.115 (Old) and 66 (New) and he is not occupying the room under Holding No.113. Deposit of monthly rent in Court in the name of the landlord Sureja Khatoon was pleaded. The defendant further claimed that the suit property was constructed by his grandfather Late Md. Ahiya (similar name as the plaintiff) and this house was given the Holding No.115 in the name of the defendant's predecessor Md. Ahiya, C/o Ahiya Biscuit Factory, Fancy Bazar, Guwahati-1.
4. It was further stated that the plaintiff filed another suit i.e. the Title Suit No.192/1986 and surreptitiously obtained an ex parte decree and CRP No.25/2008 Page 2 of 4 3 illegally executed the decree against the defendant No.3 in the Execution Case No.5/1987. The defendant No.3 then challenged his ouster and through his restoration application under Section 114 of CPC, managed to secure possession of the property under Holding No.115. Subsequently the restoration orders was upheld by this Court through dismissal of the RSA 1/89 and the High Court's order was affirmed by the Supreme Court through rejection of the SLP of the plaintiff.
5. The learned Trial Court after examining the pleadings framed 5 issues and the Issue No.(v) was to the effect "Whether the defendant is possessing the land with Holding No.115(old) 66 (new) and not the Holding No.113 (old) and Holding No.113 (old) used to be possessed by the owner of M/s Madan Cloth Store? Upon consideration of the evidence of the P.W.1 and D.W.1 the Court held that the petitioner is not the owner of the Holding No.115 and therefore the ejectment suit was dismissed. The resultant Title Appeal No.51/2007 was dismissed on 6.5.2008 by the learned Civil Judge No.3, Kamrup, Guwahati. The Appellate Court re- considered all the other Issues including the additional Issue No.(v) and found that the Trial Court decided all the Issues after due consideration of all relevant materials and found no basis to disturb the conclusion reached for dismissing the ejectment suit.
6. On the Issue of perversity pleaded by the petitioner in this Revision petition, I find that the additional W.S. of the defendant No.3 was accepted by the Trial Court on 29.7.1992 and thereafter the relevant issue was framed and concurrent findings were given by both Courts. The Courts findings are found to be reasonable and based on appropriate materials. No jurisdictional error is discernible nor any material irregularity is noticed in dismissal of the suit. Consequently I see no reason for CRP No.25/2008 Page 3 of 4 4 interference in exercise of Revisional jurisdiction.
7. For the above, merit is not found in this case and the same is accordingly dismissed without any order on cost..
8. The Registry is directed to return the L.C.R. with a copy of this order to the concerned court.
JUDGE Datta.
CRP No.25/2008 Page 4 of 4