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2015 Supreme(Gau) 626
IN THE HIGH COURT OF GAUHATI
SUMAN SHYAM, J.
Assam Apex Weavers & Artisans Cooperative Federation Limited (ARTFED) & another. – Appellant
Versus
On the death of Shri Subodh Ch. Hazarika his legal heirs – Smti. Banee Hazarika & others. – Respondents
RSA No. 100 of 2008
Decided On : 07.08.2015
Advocate Appeared:
For the appellants :Mr. J. Sharma, Advocate.
For the respondents:Mr. S. Ali, Advocate.
A suit for permanent injunction is maintainable when the plaintiff's possession is interfered with, and the defendants fail to prove a better title. However, a decree for mandatory injunction may not be sustainable if it interferes with the defendants' possession.
Headnote:
Injunction - Land Dispute - Specific Relief Act
Fact of the Case:
The plaintiff filed a suit seeking permanent and mandatory injunction against the defendants for unauthorized construction on the plaintiff's land. The trial court dismissed the suit, but the lower appellate court allowed the appeal, granting the injunction. The defendants appealed to the Second Appeal court.
Finding of the Court:
The Second Appeal court found that the plaintiff's suit for permanent injunction was maintainable as the defendants had encroached upon the plaintiff's land and made unauthorized constructions. However, the court held that the decree for mandatory injunction was not sustainable as it would interfere with the possession of the defendants.
Issues: The issues included the maintainability of the suit, the legality of the construction, and the entitlement of the plaintiff to the reliefs sought.
Ratio Decidendi: The court held that a suit for permanent injunction was maintainable when the plaintiff's possession was interfered with, and the defendants failed to prove a better title. However, a decree for mandatory injunction compelling the defendants to dismantle the construction was not sustainable as it would interfere with the defendants' possession.
Final Decision: The Second Appeal was partly allowed, and the decree for mandatory injunction was interfered with.
1. This Second Appeal has been preferred against the concurrent judgment and decree dated 30.04.2008 passed by the Court of Additional District Judge (FTC) No.4, Guwahati in Title Appeal No.24/2005 setting aside the judgment and decree dated 31.08.2005 passed by the Civil Judge (Senior Division) No.1, Kamrup, Guwahati in Title Suit No.57/2001 dismissing the suit filed by the respondent/plaintiff.
2. The case of the plaintiff as projected in the plaint is that the original plaintiff, Subodh Chandra HJazarika, was the owner in possession in respect of a plot of land measuring 4 katha 8 ½ lechas covered by dag No.1027, 1030 and 1035 of KP Patta No.437 of village Sahar Guwahati, Mouza Ulubari which has been more fully described in Schedule-A to the plaint. The plaintiff had constructed a double storied RCC building over the plot of land and also an Assam Type house and Assam Type chali over the schedule-A land which is covered by Municipal Holding No.44(A) of Ward No.XXIII of the Gauhati Municipal Corporation. The defendant No.1 was inducted as a tenant under the plaintiff in the year 1961 in respect of the aforesaid two storied RCC building and the Assam Type house and tin chali on condition of paying a monthly rent of Rs.1600/- as per the English calendar whereby the rent would become payable within the 7th day of the following month. Later on, by mutual agreement between the parties the rent was enhanced to Rs.2200/-. It is the case of the plaintiff that the defendants were very irregular in payment of monthly rent and had become defaulter with effect from the month of March, 1988. There was a vacant area falling within the Schedule-A land situated by the side of land appurtenant to the aforementioned building and house let out to the defendant No.1 by the plaintiff. The said vacant portion of land was never let out to the defendant No.1 nor do they have any manner of right, title or interest over the said vacant land belonging to the plaintiff. However, notwithstanding the same, on 27.09.1993, the defendants had encroached upon the said portion of the vacant land described in Schedule –B to the plaint and had undertaken construction of a house with brick walls and concrete posts which has been completed upto the plinth level. The said construction, as indicted in the Schedule-B of the plaint, had been stealthily undertaken by the defendants over the vacant portion of land forming a part of Schedule-A land without the consent, knowledge and permission of the plaintiff and as such the aforesaid construction being completely unauthorized and in violation of the conditions of tenancy is illegal and is liable to be declared so.
3. The plaintiff has further stated that on 28.09.1993 when he had visited the suit premises he had found that the defendants with the help of labourers had constructed the house over the Schedule-B land. The plaintiff had therefore instituted the above noted Title Suit praying for a decree of permanent injunction as well as a decree seeking mandatory injunction directing the defendants to dismantle the house/building constructed by them over the Schedule-B land.
4. On receipt of summons the defendants had entered appearance and contested the suit by filing written statement whereby various pleas pertaining to maintainability of the suit including that of want of cause of action, suit being bad for non-joinder and mis-joinder of necessary parties as well as on account of waiver, acquiescence and estoppels had been taken by the defendants. While denying the averments made in the plaint, the case of the defendants as projected in the written statement is that they were inducted as tenant in respect of the suit premises as far back as in the year 1961 at a time when the old house was standing thereupon and the defendants had started their business in the said house. Later on, by an agreement dated 21.04.1978, the plaintiff had allowed the defendants to raise new structures and/or to repair the existing s
