BHARAT CHANDRA DAS Vs. BHOGI RAM MEDHI

JUDGEMENT

(1.) ard Mr. S.J. Sarma, learned counsel appearing on behalf of the petitioner/respondent and also heard Mr. Sheeladitya, learned counsel appearing on behalf of the opposite party/appellant.

(2.) This is an application under Order 23 Rule 3 (a) and (b) R/W Sec. 151 of the CPC whereby the petitioner/respondent has sought for withdrawal of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 Kamrup, Guwahati with liberty to file a fresh suit and/or alternatively be pleased to pass order for analogous trial of Title Suit No. 53/03 pending in the Court of Civil Judge No. 3 and Title Suit No. 110/06 pending in the Court of lea-rned Civil Judge No.1.

(3.) The petitioner as the plaintiff filed Title Suit No. 58/2003 against the present/opposite party as the defendant praying for declaration of his right title and interest and confirmation of possession and also for permanent injunction. The defendant/opposite party raised the plea in his written statement that the plaintiff had no possession over the suit land along with the plea that the suit was bad for non-joinder of necessary parties and as such prayed for dismissal of the suit of the plaintiff/petitioner. During the pendency of the suit, the petitioner as the plaintiff in the Title Suit No. 58/2003 filed an application for amendment of the plaint on 27.11.2003 to introduce the prayer for recovery of possession of the suit land which was rejected by the Trial Court as the evidence of the parties in the said suit had already started. The plaintiff/petitioner did not challenge the said order of rejection of amendment petition and went ahead with the suit. The Trial Court vide Judgment dated 30.09.2005 dismissed the suit on the ground that the same was barred by law of limitation and the suit was bad for non-joinder of necessary parties. The petitioner thereafter preferred Title Appeal No. 10/2005 and the court below vide judgment dated 30.06.2009 set aside the judgment and decree passed by the Trial Court and remanded the same to the Trial Court to decide the issues and pass a fresh judgment. On such remand, the Trial Court vide judgment and decree dated 29.11.2010 dismissed the suit holding that the present petitioner had failed to establish that he got possession of the suit land at the time of execution of the sale deed and held that the plaintiff had no possession over the suit land. It was also held that the declaration of the Title of the petitioner also could not be granted as there was no further relief for recovery of khas possession.