JUDGMENT :

Prasanta Kumar Deka, J.

1. Heard Mr. N.N. Jha, learned counsel for the petitioner. Also heard Mr. M.K. Choudhury, learned Senior counsel assisted by Ms. N. Ahmed, learned counsel for the legal heirs of deceased respondent No. 2.

2. Order dated 20.05.2009 passed in Misc. (J) Case No. 90/2008 arising out of T.S. No. 157/2007 in the court of learned Civil Judge No. 2, Kamrup (M) is under challenge. The petitioners filed T.S. No. 157/2007 against the predecessor in interest of the respondent No. 1 and other respondents as defendants seeking for the following reliefs:

"(a) a decree may be passed declaring that the plaintiff has right, title, interest over the suit land described in the Schedule-A herein-below.

(b) a decree may be passed declaring that the sale deed described in the schedule B herein-below executed by the defendant Nos. 2 to 5 in favour of the defendant No. 1 being deed No. 1301/64 dated 27.02.64 cannot effect the right, title, interest and possession of the plaintiff and other heirs of Late Tahiran Nessa in the suit and the same is fraudulent and not binding upon the plaintiff.

(c) a decree may be passed declaring that the judgment and decree dated 14.5.86 passed by the Asst. District Judge, No. 1 at Guwahati in Title Suit No. 21/74 and the judgment and decree dated 23.12.97 passed in Title Suit No. 312/96 by the Civil Judge (Jr. Divn.) No. 1 at Guwahati are void and not binding upon the plaintiff.

(d) a decree may be passed for permanent injunction restraining the defendant No. 1 from executing the decree dated 23.12.97 passed in T.S. No. 312/96 by the Civil Judge (Jr. Divn.) No. 1 at Guwahati and from entering into the suit land evicting he plaintiff from the same.

(e) a decree may be passed for issuance of decree/ order to the Sub-Registrar, Guwahati for cancellation of the sale deed described in Schedule-B herein-below executed by the defendant Nos. 2 to 5 in favour of the defendant No. 1.

(f) a decree may be passed for all costs and incidentals of the suit.

(g) a decree may be passed for any other relief or reliefs which are entitled to the plaintiff under the law and equity.

And for this act of your kindness, the plaintiff as in duty bound shall ever pray."

3. The suit was filed on 21.06.2007. In the plaint the relevant paragraphs in order to decide this application is reproduced herein-below:

"15. That the plaintiff states that on the basis of the judgment and decree dated 23.12.97 passed in Title Suit No. 312/96 by the Civil Judge (Jr. Divn.) No. 1 at Guwahati, the defendant No. 1 has filed a Title Execution being Title Execution Case No. 5/98 and the eviction process of the plaintiff from the suit land is going on and as such during the pendency of the suit the defendant No. 1 may be restrained from evicting the plaintiff from the suit land removing the houses standing thereon by staying the execution proceeding of Title Execution No. 5/98 pending in the court of Civil Judge (Jr. Divn.) No. 1 at Guwahati till disposal of the suit for which the plaintiff has filed a separate application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure with the plaint."

4. The respondent No. 1 filed the written statement during his lifetime. Therein the written statement the said deceased respondent No. 1 as the defendant No. 1 took the defence and pleaded the actual facts which are reproduced herein-below:

"11. That the allegations in paragraph 5 of the plaint are wholly true and correct. It is true and correct that on 15-06 the bailiff of the court went to execute the decree in Title Execution No. 5 of 1998 for giving khas possession of the suit land defendant in Title Suit No. 312 of 1996 constructed the houses the pendency of appeal and the bailiff was entitled to demolish constructions while executing the decree for possession by incidental, ancillary and consequential power and there was wrong in it. In fact, the decree for khas possession was exe 04.07.2007 by demolishing the houses constru