Gauhati High Court
WP(C)/722/2021 on 17 May, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/23
GAHC010031762022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(C) 722/2021
1. Md Yasin Ali,
S/o Late Innus Ali,
R/o Village - Chamatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
2. Iddrish Ali,
S/o Late Innus Ali,
R/o Village - Chamatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M],
Assam, PIN - 782402.
.................. Petitioners
-Versus-
1. The State of Assam,
Represented by the
Secretary to the Government of Assam,
Home Department, Dispur, Guwahati - 06.
2. The Director General of Police,
Assam Police Headquarters,
Ulubari, Guwahati 781007.
3. The Deputy Collector,
Kamrup [M], Guwahati 01.
4. The Commissioner of Police,
Kamrup [M], Guwahati 01.
Page No.# 2/23
5. The Circle Officer,
Sonapur Revenue Circle Office, Sonapur,
Kamrup [M], PIN - 782402.
6. The Officer In-Charge,
Sonapur Police Station,
Sonapur, Kamrup [M], PIN 782402.
7. Mafia Khatun,
W/o Late Abdul Azid,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
8. Atabar Ali,
S/o Late Abdul Azid,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
9. Babul Ali,
S/o Late Abdul Azid,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M],
Assam, PIN - 782402.
10.Anar Ali,
S/o Late Abdul Azid,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
11.Najir Ali,
S/o Md. Atabar Ali,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
12.Sahida Khatun,
D/o Late Abdul Azid,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
Page No.# 3/23
13.Jakir Ali,
S/o Md. Atabar Ali,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M], Assam, PIN - 782402.
14.Asif Ali,
S/o Md. Atabar Ali,
R/o Village - Samatapathar,
P.O. & P.S. Sonapur,
District - Kamrup [M],
Assam, PIN - 782402.
..................Respondents.
Advocates :
Petitioners : Mr. Y. Sikdar, Advocate.
Respondent nos. 1 - 6 : Mr. K. Gogoi,
Additional Senior Government Advocate, Assam
Respondent nos. 7 - 14 : Mr. R. Sensua, Advocate.
Date of Hearing and Judgment & Order : 17.05.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
Heard Mr. Y. Sikdar, learned counsel for the petitioners; Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam for the respondent nos. 1-6; and Mr. R. Sensua, learned counsel for the respondent nos. 7-14.
2. The 2 [two] petitioners have claimed that they are the legal heirs of Late Innus Ali and Late Sakina Begum, who were their father and mother respectively.
Page No.# 4/23 2.1. The respondent nos. 7-18 are impleaded in the capacities of legal heirs of one Late Abdul Azid. While the respondent no. 7 is the wife of Late Abdul Azid, the respondent nos. 8, 9 & 10 are the sons of Late Abdul Azid. The respondent no. 12 is the daughter of Late Abdul Azid while the respondent nos. 11, 13 & 14 are the grand-children of Late Abdul Azid.
3. The issue in this writ petition revolves around a plot of land measuring 2 Bighas, covered by Dag no. 312 and Periodic Patta no. 99, located in Village - Samatapathar, Mouza - Sonapur, Revenue Circle - Sonapur, within the Kamrup Metropolitan district [hereinafter referred to as 'Plot no. 1', for brevity].
4. The case projected by the 2 [two] petitioners, as per the pleadings made in the writ petition, is as follows :
4.1. The family of the petitioners through their predecessor-in-interest is in occupation of Plot no. 1 for more than 70 years. The respondent nos. 7-14 [hereinafter referred to as 'the private respondents', for easy reference] through their predecessor-in-interest were/are in occupation of a plot of government land, covered by Dag no. 314, located in Village - Samatapathar, Mouza -
Sonapur, Revenue Circle - Sonapur within Kamrup [M] district [hereinafter referred to as 'Plot no. 2', for brevity] and Plot no. 2 is second plot neighbouring Plot no. 1. The petitioners have alleged that till the year 1985, the Plot no. 1 was also a government land. Late Abdul Azid initiated a process to convert Plot no. 2 into a periodic patta land on the basis of his claim of its long possession. But the State respondent authorities had incorrectly converted Plot no. 1 into periodic patta land in the year 1985 whereas Late Abdul Azid had no previous Page No.# 5/23 possession over Plot no. 1. When the private respondents came to know that instead of Plot no. 2, Plot no. 1 had become periodic patta land in the name of Abdul Azid, dispute started to arise between the two sides on and from 1985 onwards and the private respondents had started making efforts to evict the predecessor-in-interest of the petitioners from Plot no. 1 through different methods but all those attempts were thwarted.
4.2. The private respondents had thereafter, instituted a title suit, Title Suit no. 104/2003 before the learned Court of Munsiff No. 1, Kamrup [M] claiming rights, title and interest over Plot no. 1 and had sought eviction of the petitioners and their predecessor-in-interest. After trial, the title suit was decreed in favour of the private respondents by a judgment and decree. After passing of the judgment and decree in the title suit, the private respondents instituted a title execution proceeding vide Title Execution Case no. 18/2014 before the Court of learned Munsiff no. 1, Kamrup [M] at Guwahati to evict the petitioners from Plot no. 1 but on 18.12.2020, the execution case was withdrawn at the instance of the private respondents.
4.3. After withdrawal of Title Execution Case no. 18/2014, the private respondents applied for demarcation of the boundaries of Plot no. 1 without having been in possession of the same. On receipt of the application, the respondent no. 5 registered the same as Demarcation Case no. 28/2019-20 and issued notices on 23.12.2020 to the private respondents and others directing them to be present at the spot on 28.12.2020 for the purpose of demarcation. The petitioners after getting information about the process of demarcation likely to be carried out in respect of Plot no. 1 on 28.12.2020, had approached the Page No.# 6/23 respondent no. 5 with an objection petition but the respondent no. 5 refused to receive the said objection petition and directed the petitioners to vacate Plot no. 1 immediately. As scheduled, the respondent no. 5 along with her official staff and a team of police personnel from Sonapur Police Station came to the spot and demarcated the boundaries of Plot no. 1 in absence of the pattadars of Dag no. 310 [hereinafter referred to as 'Plot no. 3', for short], which is a plot adjacent to Plot no. 1. The petitioners have alleged that as no notice was served upon the pattadars of Plot no. 3, the pattadars of Plot no. 3 were absent on 28.12.2020 and were unable to raise any objection with regard to the demarcation process. As a result, a major portion of Plot no. 3 entered into Plot no. 1 and pillars were posted by wrongly demarcating the boundaries of Plot no.
1. 4.4. Allegations have been made that thereafter, the private respondents with the use of force and in collusion with the respondent no. 5 and the respondent no. 6, have been trying to evict the petitioners from Plot no. 1. It has been alleged that on 31.12.2020, the private respondents had entered into Plot no. 1 and made attempts to evict the petitioners from it and in the process, they had committed criminal offences, which resulted into registration of a First Information Report [FIR] before the Officer In-Charge, Sonapur Police Station on 31.12.2020. With the threat of eviction looming large, the petitioners stated to have approached the respondent no. 4 to submit a representation dated 04.01.2021 seeking a direction to the respondent no. 6 to protect their lives and properties. Another application was stated to have been submitted by the petitioners before the respondent no. 3 on 18.01.2021 followed by a written objection on 21.01.2021 to the respondent no. 5, who did not receive the same.
Page No.# 7/23 With the afore-stated projections, the petitioners have approached this Court seeking inter alia relief in the form of allowing the petitioners to occupy Plot no. 1 peacefully by constructing boundary walls around it until any prohibitory order is passed by any competent authority in respect of Plot no. 1.
5. Notices were issued to the respondents on 05.02.2021 by observing that status quo in respect of possession of Plot no. 1 be maintained till the returnable date. On receipt of notices, the respondent nos. 2, 4 & 6 have filed an affidavit-in-opposition on 26.04.2022 and the respondent no. 3 & 5 have filed their affidavit-in-opposition on 07.05.2022. The private respondent nos. 7-14 through the respondent no. 9 have also filed their affidavit-in-opposition on 18.02.2022. The petitioners have not filed any affidavit-in-reply to the said three affidavits-in-opposition filed by the respondents.
6. The respondent nos. 7-14 through their affidavit-in-opposition have averred as follows : that their predecessor-in-interest, Late Abdul Azid was the owner and possessor of Plot no. 1. After the death of Late Abdul Azid, Plot no. 1 is inherited by them being the legal heirs/successors-in-interest of Late Abdul Azid. The plot, Plot no. 1 was earlier an annual patta land and the same was converted into periodic patta land vide an Order dated 28.05.1985 passed by the respondent no. 5 during the lifetime of Abdul Azid and since then, Abdul Azid [since deceased] was continuously in possession of Plot no. 1 and after his death, the possession of Plot no. 1 is with the private respondents being his legal heirs/successors-in-interest.
6.1. It was in the year 1994, Late Abdul Azid had allowed the predecessor-
Page No.# 8/23 in-interest of the petitioners, Late Innus Ali to reside in a part of the land falling within Plot no. 1 by constructing a bamboo shed and to live there along with his family without payment of any rent on the condition that Late Innus Ali would look after the land and would vacate land as and when he would be asked to vacate. Accordingly, the father of the petitioners, Late Innus Ali started living in Plot no. 1 by constructing a bamboo shed in a corner of Plot no. 1 till 1996 and till that time, there was no disturbance.
6.2. The names of the private respondents have been mutated in the revenue records in relation to Plot no. 1 vide an Order dated 27.08.2002 passed by the respondent no. 5. As recorded pattadars, the private respondents have been regularly paying the land revenue in respect of Plot no. 1.
6.3. But after the death of the predecessor-in-interest of the private respondent, Late Abdul Azid, the family of the petitioners started creating different kinds of disturbances upon the private respondents. Aggrieved by the same, the private respondents requested the petitioners to vacate that part of Plot no. 1 which was allowed to their predecessor-in-interest, Late Innus Ali. When they refused to do so, the private respondents instituted the title suit, Title Suit no. 104/2003 praying inter alia for right, title and interest over Plot no. 1 along with eviction of the family of the petitioners and injunction. The title suit was contested from the side of the petitioners but without filing any counter claim.
6.4. The pleaded case of the petitioners as defendants in Title Suit no. 104/2003 was that their predecessor-in-interest, Late Innus Ali was in Page No.# 9/23 possession of an area of land measuring 10 lessas, covered by Dag no. 436, along with some other government land, adjacent to Dag no. 436 and another plot of land measuring 2 Kathas, which is part of Plot no. 1. It was pleaded these 2 [two] kathas of Plot no. 1 were contiguous to the other lands possessed by him. After contest, Title Suit no. 104/2008 was decreed in favour of the private respondents - plaintiffs by a judgment and decree dated 19.08.2005. The claim of adverse possession over those 2 [two] kathas was denied. After the judgment and decree dated 19.08.2005 passed in Title Suit no. 104/2003, the petitioners preferred a title appeal being Title Appeal no. 96/2005 before the first appellate court. The first appellate court of learned Civil Judge no. 2 [Senior Division], Kamrup vide its judgment and decree dated 13.08.2007 was pleased to dismiss the title appeal, Title Appeal no. 96/2005 by affirming the judgment and decree dated 19.08.2005 passed by the learned trial Court. The petitioners had not thereafter, laid any challenge to the judgment and decree passed by the first appellate court affirming the judgment and decree of the learned trial Court.
6.5. The private respondents had, in the interregnum, instituted an execution proceeding vide Title Execution Case no. 16/2006. The judgment and decree of the learned trial Court was executed on 09.05.2008 by the learned executing Court by delivering the possession of the decreetal land i.e. Plot no. 1, covered by Dag no. 312, to the private respondents. After execution of the decree, the petitioners filed a petition alleging that the execution was wrongly carried out in Plot no. 3. On such an application being filed, the same was registered as Misc. Case no. 273/2008. The learned executing Court issued a commission seeking report from the respondent no. 5. The respondent no. 5 Page No.# 10/23 after carrying out necessary enquiry at the spot on 20.10.2009 by making demarcation of Plot no. 1 and Plot no. 3, submitted a report dated 23.03.2010. Upon perusal of the said report dated 23.03.2010, the learned Court by its order dated 25.01.2011 dismissed Misc. Case no. 273/2008 filed by the petitioners in Title Execution Case no. 16/2006.
6.6. In the order dated 25.01.2011, the learned Court had observed that the predecessor-in-interest of the petitioners was a pattadar in respect of different plots of land and from the trace map, it was evident that Plot no. 1 and Plot no. 3 were separated by plot of land covered by Dag no. 311 ['Plot no. 5', for short] and a road ['Plot no. 4', for short] and therefore, the execution could not have been carried out in Plot no. 3 without carrying out execution in Plot no. 4 and Plot no. 5.
6.7. When in the subsequent period there were consistent efforts from the petitioners to disturb the possession of the private respondents in respect of a part covered by Plot no. 1, the private respondents were compelled to file another execution case, Title Execution Case no. 18/2014. Later on, it has been renumbered as Title Execution Case no. 149/2014. The petitioners thereinafter appearing in Title Execution Case no. 149/2014, filed a written objection stating inter alia therein that the execution proceeding was not maintainable in view of the fact that the decree of Title Suit no. 104/2003 had already been executed vide Title Execution Case no. 16/2006. It was stated that the Executing Court had already recorded the finding that execution was not done in any other land other than the decreetal land i.e. Plot no. 1. It was further stated by the petitioners that they were in possession of 2 kathas of land in Plot no. 1. The Page No.# 11/23 possession of the decreetal land i.e. Plot no. 1 had already been delivered to the private respondents at the time of execution of the decree. The learned Court on receipt of the objection from the petitioners in Title Execution Case no. 149/2014, called for the case records of Title Execution Case no. 16/2006 and fixed the matter for hearing.
6.8. According to the private respondents, it is the consistent plea of the petitioners in Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014] that they were not in possession of Plot no. 1 but were in possession of Plot no. 3, which was their own land. It was in such circumstances, the private respondents had filed a petition being Petition no. 717/2020 on 07.03.2020 expressing their desire to withdraw Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014]. The execution proceeding in Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014] came to be withdrawn on 18.12.2020 by virtue of an order passed by the learned Court on that date.
6.9. In respect of Demarcation Case no. 28/2019-20, the private respondents have averred that since the petitioners had cleared all the confusions by their stance in Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014], the private respondents had applied for demarcation of Plot no. 1 before the respondent no. 5. The respondent no. 5 on registration of the case for demarcation, issued notices to all the co-pattadars and/or land owners sharing common boundaries with Plot no. 1 on 23.12.2020 by putting them on notice that demarcation of the boundaries of Plot no. 1 would be carried out on 28.12.2020. Accordingly, the demarcation of boundaries of Plot Page No.# 12/23 no. 1 was carried out by the respondent no. 5 on 28.12.2020 in presence of concerned revenue staff and a team of police personnel deputed by the respondent no. 6, apart from others. The private respondents were shown the boundaries of Plot no. 1 and the respondent no. 5 had also submitted a report in that regard.
6.10. After demarcation of the boundaries of Plot no. 1 on 28.12.2020, the private respondents had erected some posts and pillars on the boundaries of Plot no. 1. But the petitioners started creating disturbances in respect of Plot no. 1 immediately after the process of demarcation. With such projections, the private respondents have alleged there was concealment of facts on the part of the petitioners in approaching this Court by this writ petition and the petitioners have no interests whatsoever in respect of Plot no. 1 after execution of Title Execution Case no. 16/2006.
7. The respondent nos. 3 & 5 in their affidavit-in-opposition have averred that as per available records, neither the petitioners nor their predecessor-in- interest are recorded pattadars in respect of Plot no. 1. As per the records available in the office of the respondent no. 5, the private respondents are the pattadars in respect of Plot no. 1. It has been clarified that Plot no. 1 was originally an annual patta land which was converted into periodic patta land following a due process of conversion vide an Order no. 118/81-82 dated 21.05.1985.
7.1. Two applications were received from the respondent no. 7 who was the wife of Late Abdul Azid, to demarcate the boundaries of Plot no. 1.
Page No.# 13/23 Accordingly, the demarcation case was registered and notices were issued to all the pattadars having common boundaries with Plot no. 1. A total of 15 nos. of pattadars of adjacent plots of land were put on notice and were asked to be present on the date of demarcation. It has been clarified that Plot no. 1 does not share any common boundary with Plot no. 3. There is a government road, covered by Dag no. 309 [Plot no. 4] between the Plot no. 1 and Plot no. 3. As Plot no. 3 does not share any common boundary with Plot no. 1, notices were not served to the pattadars of Plot no. 3. Demarcation of the boundaries of Plot no. 1 was stated to have been carried out in presence of the respondent no. 5, the officials from the office of the Joint Director, Assam Survey and Settlement; the Village Headman and a team of police personnel from Sonapur Police Station, apart from the local people.
8. The respondent nos. 2, 4 & 6 in their affidavit-in-opposition have inter alia stated as follows : On 23.12.2020, the respondent no. 5 had intimated the respondent no. 6 that the process of demarcation with regard to Plot no. 1 would be carried out on 28.12.2020 and accordingly, the respondent no. 6 deputed a team of police personnel, led by two Assistant Sub-Inspectors of Police, at the demarcation site for the purpose of maintenance of law and order and for the purpose of smoothly carrying out the process of demarcation of boundaries of the concerned plot of land by the respondent no. 5 and her staff. The information was recorded in the general diary of Sonapur Police Station vide Sonapur Police Station General Diary Entry nos. 595 and 599, dated 28.12.2020.
8.1. On 31.12.2020, an FIR was lodged by the wife of the petitioner no. 2 and accordingly, a crime case being Sonapur Police Station Case no. 559/2020 Page No.# 14/23 has been registered under Sections 447/294/506, Indian Penal Code [IPC] and is being investigated. During the course of investigation, the place of occurrence was visited and the statements of the informant and other witnesses have been recorded. It has been stated that the case is still under investigation.
8.2. On the same date, another FIR was lodged by one Md. Attabar Ali from the side of the private respondents. The said FIR has been registered as Sonapur Police Station Case no. 560/2020 under Sections 143/149/341/294/506, IPC. The investigation of the case is being carried out by examining and by recording the statements the informant and other witnesses and as on date, the said case is also under investigation.
8.3. When a petition was received on 05.01.2002 from the petitioners praying for drawal of a proceeding under Sections 107/145/146, CrPC against some persons amongst the respondents nos. 8-14 alleging that a dispute had arisen in respect of Plot no. 1, a Non-FIR case no. 16/2021 under Section 107, CrPC and another Non-FIR case no. 17/2021 under Sections 145/146, CrPC were registered and after causing necessary enquiries, both the cases were sent to the Court of competent Magistrate with a prayer for drawal of proceedings under the above sections of law. The allegations of any harassment from the side of the respondent no. 6 to the petitioners have been categorically denied by asserting that the steps taken from the end of the respondent no. 6 were in connection with the demarcation process and the same were duly discharged by the officials and the team, so deputed by him.
9. It is on the basis of the aforesaid stands of the parties taken in this Page No.# 15/23 writ petition, the issue as to whether the petitioners can be granted the relief sought for in this writ petition or not, is to be answered.
10. Having gone through the respective pleadings of the parties, it has emerged that the petitioners in their writ petition have only mentioned about [a] Title Suit no. 104/2003; [b] the decree passed in favour of the private respondents in Title Suit no. 104/2003 without mentioning about the date of the judgment and decree; [c] Title Execution Case no. 18/2014; and [d] withdrawal of the Title Execution Case no. 18/2014 by an order dated 18.12.2020. The petitioners conspicuously are found maintaining silence about the events that had happened in the interregnum starting from the passing of the judgment and decree in Title Suit no. 104/2003 on 19.08.2005 till institution of Title Execution Case no. 18/2014.
10.1. It has emerged from the materials on record that while denying the case of the private respondents in Title Suit no. 104/2003, the petitioners in their written statement filed therein had inter alia stated that they were in possession of a land measuring 10 lessas being part of periodic patta land covered by Dag no. 436 and an adjacent government plot of land since 01.04.1978, along with 2 [two] kathas of Plot no. 1. The said stand is contrary to the stand taken by the petitioners in the writ petition that they have been in possession of the concerned lands since last 70 years. The petitioners have averred therein that they had also been in possession of a part of land measuring 2 Kathas in Plot no. 1 since 01.04.1978 and that part of the land was contiguous to other lands possessed by the petitioners by making constructions therein. It was averred that the predecessor-in-interest of the private Page No.# 16/23 respondents, Late Abdul Azid was never in possession of that part of the land within Plot no. 1 which was possessed by the predecessor-in-interest of the petitioner, Late Innus Ali who expired on 12.06.1992. The title suit, Title Suit no. 104/2003 came to be disposed of by a judgment and decree dated 19.08.2005 on contest in favour of the private respondents. The learned trial Court had held that the plaintiffs therein were entitled to a declaration of rights, title and interest over the said land i.e. Plot no. 1; perpetual injunction as prayed for; and a decree of eviction of the defendants i.e. the present petitioners.
10.2. The petitioners are found maintaining absolute silence on the aspect that they had preferred an appeal, Title Appeal no. 96/2005 against the judgment and decree dated 19.08.2005 passed by the learned Civil Judge [Junior Division], No. 1, Kamrup, Guwahati in Title Suit no. 104/2003 and also about the fact of dismissal of the said Title Appeal no. 96/2005 by the first appellate court of learned Civil Judge No. 2, Guwahati by a judgment and order dated 13.08.2007 with the finding that the appeal lacked in merits.
10.3. It is an admitted fact that the petitioners have not preferred any further appeal against judgment and order dated 13.08.2007 passed by the first appellate court, meaning thereby, the judgment and order of the learned trial Court, affirmed by the first appellate court, has attained finality. In the title suit, the petitioners' claim for adverse possession was denied and the said finding has attained finality.
10.4. The petitioners are also found maintaining silence on the aspect of institution of Title Execution Case no. 16/2006 by the private respondents for Page No.# 17/23 execution of the judgment and decree dated 19.08.2005. From the materials on record, it has emerged that the petitioners had appeared in Title Execution Case no. 16/2006 and had submitted their pleadings. During the course of proceedings of Title Execution Case no. 16/2006, the petitioners had filed an application which was registered as Misc.[J] Case no. 273/2008 and pursuant to an order of the learned Executing Court, the respondent no. 5 had carried out a spot enquiry in respect of the areas of land covered by Plot no. 1 for the purpose of taking measurements. In the course of the said enquiry, the respondent no. 5 demarcated boundaries of Plot no. 1 as well as Plot no. 3 and after the spot enquiry, the respondent no. 5 submitted a report before the learned Executing Court on 23.03.2010 reporting that the predecessor-in- interest of the petitioners/the petitioners were possessing a part of Plot no. 1 whereas the predecessor-in-interest of the petitioner/the petitioners were/are recorded pattadars in respect of Plot no. 3. While submitting the report, the respondent no. 5 had also submitted a certified copy of the trace map and chitta copy. Thereafter by an order dated 25.01.2011, the Executing Court i.e. the learned Court of Munsiff No. 1, Kamrup, Guwahati dismissed Misc.[J] Case no. 273/2008. It was observed therein that during the pendency of Misc.[J] Case no. 273/2008, execution was carried out. The learned Court had observed in its order dated 25.01.2011 that the predecessor-in-interest of the petitioners/the petitioners were/are pattadars in respect of only Plot no. 3 and the trace map revealed that Plot no. 3 and Plot no. 1 were separated by another plot with Dag no. 311 [Plot no. 5] and a path [Plot no. 4].
10.5. During the proceedings of Title Execution Case no. 18/2014, the petitioners by making appearance, had submitted their written objection stating Page No.# 18/23 inter alia that the decree in Title Suit no. 104/2003 had already been executed vide Title Execution Case no. 16/2006. It was admitted by the petitioners in the written objection filed in Title Execution Case no. 18/2014 that Title Execution Case no. 16/2006 was disposed of as the possession of Plot no. 1 was delivered to the decree holders i.e. the private respondents. The petitioners had expressed surprise on the fact that subsequently the execution case was instituted in respect of Plot no. 1 again whereas execution in respect of Plot no. 1 had already been carried out through Title Execution Case no. 16/2006 and the decree holders i.e. the private respondents after getting delivery of possession of Plot no. 1 had once again filed the subsequent execution case to get the remaining portion of the land belonging to the petitioners. The petitioners had however, raised a plea that they were possessing a part of land in Plot no. 1 [2 Kathas of land].
10.6. Another application in writing [Annexure-9 in the affidavit-in-opposition of the private respondents] was filed by the petitioners in Title Execution Case no. 18/2014 stating that the proceeding of Title Execution Case no. 16/2006 was disposed of as the possession of the decreetal land was already delivered to the decree holders. The petitioners had filed written objection against further execution of the decree in Title Suit no. 104/2003, which was already executed in Title Execution Case no. 16/2006 and therein, it was alleged that it was instituted to evict the petitioners' own land. It may be stated that Plot no. 1 was never owned by the predecessor-in-interest of the petitioners and/or by the petitioners.
11. It has been held by the Hon'ble Supreme Court of India in K.D. Page No.# 19/23 Sharma vs. Steel Authority of India Limited and others, reported in [2008] 12 SCC 481, that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that a petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress [keep back] or not to disclose [conceal] other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete [correct] facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the Page No.# 20/23 relief sought without any qualification.
12. In Prestige Lights Ltd. vs. State Bank of India , reported in [2007] 8 SCC 449, it has been held that in exercising power under Article 226 of the Constitution of India, the High Court is not just a Court of law but is also a Court of Equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution, is duty bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court, then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution of India.
13. In Dalip Singh vs. State of Uttar Pradesh and others , reported in [2010] 2 SCC 114, the Hon'ble Supreme Court of India has recognized a new creed of litigants that has cropped up and who do not have any respect for truth. It has been observed that this new creed of litigants simply resort to falsehood and unethical means for achieving their goals. In order to meet the challenge caused by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
14. From the case projected by the petitioners through their pleadings in the writ petition, which have already been extracted above, it is evidently clear that there are suppression and concealment of material facts on the part of the petitioners while approaching this Court seeking the relief. The petitioners have not disclosed the fact that they had preferred an appeal against the judgment Page No.# 21/23 and decree of the learned trial Court and their appeal was rejected by the first appellate Court finding no merits. Since the petitioners have not challenged the judgments and decrees passed by the learned trial Court and the first appellate Court, the same have attained finality. The denial of the petitioners' claim for adverse possession has also attained finality. One makes a claim of adverse possession when he does not have title and ownership. The petitioners have not disclosed that during the execution proceedings carried out in the course of Title Execution Case no. 16/2006, execution was duly carried out in respect of Plot no. 1 on 09.05.2008 by delivering the possession of the decreetal land, Plot no. 1 to the private respondents. The petitioners have not disclosed about the stance they had taken in the subsequent execution proceeding instituted vide Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014]. There are many other vital and relevant facts which are not disclosed or are concealed by the petitioners which can be evident from the pleadings of the parties, which have been briefly narrated in the preceding paragraphs of this order, and the remaining parts are not repeated herein for the sake of brevity, as they are already parts of the records of the judicial proceedings, referred above. Thus, this Court is of the considered view that the petitioners have not stated the material facts in the proper and right perspective and they have suppressed and concealed material facts, which ought to have been disclosed, at first point of time, without any reservation.
15. From the Jamabandi [Records of Rights], annexed as Annexure-1 to the writ petition, it is noticed that it is the private respondents whose names are recorded as pattadars in respect of Plot no. 1. The Jamabandi has further reflected that on payment of premium on 24.02.1982 by Late Abdul Azid, the Page No.# 22/23 plot of land, measuring 2 Bighas and covered by Dag no. 312 [Plot no. 1], was recorded in the name of Late Abdul Azid pursuant to an Order dated 21.05.1985 and thereafter, the names of the private respondents have been mutated in respect of Plot no. 1 by way of inheritance. The petitioners have not been able to show any semblance of right with regard to their rights and titles in respect of Plot no. 1. The petitioners have claimed that they were in possession of a part of Plot no. 1 but it is noticed that during the execution proceedings of Title Execution Case no. 16/2006, the delivery of possession of the decreetal land [Plot no. 1] was handed over to the private respondents on 09.05.2008. The State respondents have, on the basis of the revenue records, asserted that the Plot no. 1 and Plot no. 3 in respect of which the petitioners have some semblance of claim, are not adjacent plots and the plots covered by Dag no. 311 [Plot no. 5] and a road [Dag no. 309 i.e. Plot no. 4] have separated Plot no. 1 and Plot no. 3. Considering the fact that Plot no. 3 is not an adjacent plot to Plot no. 1, the action of the State respondents in not serving any notice to the petitioners with regard to Demarcation Case no. 28/2019-20 cannot be faulted with. It is seen from the notice issued on 23.12.2020 by the respondent no. 5, notices were issued to 15 nos. of persons including the pattadars of plots situated adjacent to Plot no. 1. None of the pattadars of plots adjacent to Plot no. 1 has made any grievance with regard to the process of demarcation carried out on 28.12.2020. Since the petitioners are found to be not in possession of any of the plots adjacent and contiguous to Plot no. 1, it is not open for them to raise any grievance with respect of the process of demarcation carried out by the respondent no. 5 on 28.12.2020. The petitioners cannot substitute themselves in place of and step into the shoes of the pattadars of the plots adjacent and continuous to Plot no. 1 and claim that they are aggrieved persons Page No.# 23/23 in that capacity. The petitioners have themselves admitted during the proceedings of Title Execution Case no. 18/2014 [Title Execution Case no. 149/2014] by a written objection [Annexure-8 to the affidavit-in-opposition of the private respondents] that after execution of decree passed in Title Suit no. 104/2003 another execution proceeding was not necessary as the said decree had already been executed in Title Execution Case no. 16/2006. Thus, the case of the petitioners seeking relief in the form of peaceful occupation of Plot no. 1 by constructing boundary walls around it until any prohibitory order passed by any competent Court is found not merited as their case is based on distorted facts accompanied by deliberate act of suppression and concealment.
16. In the light of the above discussion, more particularly, for the facts that the petitioners are found guilty of suppression and concealment of material facts as the petitioners seem to have suppressed and concealed material facts while approaching this Court by this writ petition and the fact that the petitioners have not been able to show any semblance of rights with regard to Plot no. 1 i.e. the plot of land measuring 2 Bighas, covered by Dag no. 312 and Periodic Patta no. 99, located in Village - Samatapathar, Mouza - Sonapur, Revenue Circle - Sonapur, within Kamrup [M] district, this Court has found the writ petition to be lacking any merit whatsoever and consequently, the same is liable to be dismissed. It is accordingly dismissed. The interim order stands recalled. No cost.
JUDGE Comparing Assistant