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2014 Supreme(Gau) 959
GAUHATI HIGH COURT
Nishitendu Chaudhury, J.
Musstt Anjira Khatoon Hazarika - Appellant
Versus
Tapan Kumar Das - Respondent
CRP No. 360 of 2013
Decided On : 23-07-2014
For the Petitioner: Mr. M. Biswas, Mr. G.J. Saikia, Mr. M. Borah and Mr. T. Chutia.
For the Respondent: Mr. B.C. Das and Mr. U. Dutta.
Headnote:
Code of Civil procedure , 1908 - Section 91 - Order VII , XIV , XVIII - Rule 11(d) , 2(2) and 18 - Gauhati Municipal Corporation Act, 1971 - Section 341 - Industrial Disputes Act, 1947 - Specific relief Act, 1963 - Section 41(h) - Suit house - Tenant - Evidence - Schedule C drain - Decreed - Temporary injunction - Application was rejected by learned trial court by order dated which was brought under challenge before this court by the tenant - This court after hearing the parties affirmed order passed by learned trail court and thus daughter of the plaintiff could not be made a party in suit - Thereafter, plaintiff led evidence in support of plaint and evidence of plaintiff having been closed, defendant was asked to produce his witnesses - Defendant submitted a list of witness containing 5 witnesses out of which 3 were examined - Schedule A, B and C to plaint contained only a Public drain to be used by plaintiff and others for ever that Schedule C land belonging to defendant but connected to land of plaintiff cannot be obstructed by defendant that permanent injunction be decreed against defendant restraining him from disturbing peaceful enjoyment of drain facility in Schedule C property owned by defendant and for costs etc - In suit plaintiff also filed an application for temporary injunction for removal of obstruction of Schedule C drain and learned trial court after hearing the parties allowed prayer for ad interim mandatory injunction by order dated directing removal of blockade of drain within 10 days – Held, plaintiff having claimed that drain in question is a public drain has further pleaded in paragraphs 8 and 9 of plaint that obstruction created by defendant on the suit drain has caused unpleasant situation in locality including the house of plaintiff and his neighbour - Prima facie, suit is not only for the benefit of plaintiff but also others including Suwola Devi who has not been joined as plaintiff or defendant - Prayer for decree of civil court of this nature for removal of obstruction affecting public is essentially a suit under section 91 of Code - A suit under section 91 of Code can be filed either by two or more private persons or otherwise it can be filed alone by Advocate General of stale - Here, suit has been filed by one plaintiff and he is not Advocate General of state and in this view of matter suit suffers from yet another infirmity which undoubtedly shall be a bar within - Learned trial court has not considered these aspects of matter while considering the maintainability of the suit which really was an exercise under the jurisdiction derived - Suit is not maintainable - Plaintiff however shall be at liberty to ventilate his grievances under relevant provisions of Gauhati Municipal Corporation Act, 1971, if so advised - Impugned order therefore cannot be approved to be a one passed in due exercise of jurisdiction and accordingly same is set aside - Revision petition is allowed.
2. The opposite party, as plaintiff, instituted Title Suit No. 334/2011 in the Court of learned Munsiff No. 2, Kamrup at Guwahati praying for declaration that western boundary of land described in Schedule A, B and C to the plaint contained only a Public drain to be used by the plaintiff and others for ever, that Schedule C land belonging to the defendant but connected to the land of the plaintiff cannot be obstructed by the defendant, that permanent injunction be decreed against the defendant restraining him from disturbing peaceful enjoyment of drain facility in the Schedule C property owned by the defendant' and for costs, etc. In the suit the plaintiff also filed an application for temporary injunction for removal of the obstruction of the Schedule C drain and learned trial court after hearing the parties allowed prayer for ad interim mandatory injunction by order dated 30.9.2011 directing removal of blockade of the drain within 10 days. The defendant challenged the order by preferring Misc. Appeal No. 33/2011 in the Court of learned Civil Judge No. 3, Kamrup at Guwahati, inter alia, on the ground that the suit itself being not maintainable the injunction order was liable to be set aside. It is stated at the Bar that the Schedule C drain was eventually cleared by removal of obstruction. However, the learned appellate court finally allowed the appeal, set aside the impugned injunction order on 21.9.2012 and remanded the matter to the learned trial court with direction to decide objection as to jurisdiction of civil court and also to consider the application stated to have been pending for commission under order XVIII, rule 18 of the Code of Civil procedure ('the CPC'). Thereafter the learned trial court heard the parties on the question of maintainability of the suit and jurisdiction of civil court and consequently passed order on 16.11.2013 holding that civil court has jurisdiction to entertain the suit and that suit was maintainable. This order is under challenge in the present revision petition.
3. It is pleaded in the case of the plaintiff that he along with one Dhan Chandra Mahanta purchased Schedule A land measuring 15 lessas on 8.12.1997 from 3 persons, namely, Sailendra Medhi, Narendra Nath Medhi and Dhircn Medhi. Dhan Chnadra Mahanta, having relinquished his title in his favour, plaintiff became absolute owner in possession of the entire 15 lessas of land. To the W
