Point of Law: Even a trespasser cannot be dispossessed without following the due process of law - If the plaintiffs are in possession of the suit land, the plaintiffs ought to be protected by way of an injunction till the disposal of the suit.

JUDGMENT :

Heard Mr. B. Pushilal, learned counsel appearing for the petitioners and Mr. P.K. Roy, learned counsel appearing on behalf of the respondents.

2. This is an application under Article 227 of the Constitution of India challenging the judgment and order dated 26.04.2018 in Misc. Appeal No.22/2017 by the Court of the Civil Judge, Karimganj, whereby the order of injunction directing maintenance of status quo passed by the Munsiff No.1, Karimganj on 07.12.2017 in Misc. Case No.108/2017 arising out of Title Suit No.132/2017 was interfered with on the ground that the suit was not maintainable in view of the provisions of Order XXI Rule 101 and consequently the plaintiffs did not have a prima-facie case for grant of an injunction either in the way of status quo or otherwise.

3. The instant proceedings raises a very important question of law as to whether a suit is maintainable seeking right, title, interest and permanent injunction in respect to a judgment and decree having been passed pertaining to an immovable property whereby the right, title and interest, confirmation of possession and permanent injunction has been issued. The question of law assumes importance in view of the amendment brought to the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976, whereby the provisions of Order XXI Rule 97 to 106 have been substantially amended whereby it is no longer required to file a separate suit seeking right, title and interest as was permitted under the unamended Rule 103 of Order XXI which had been substituted by the new Rule 101 and Rule 103 of Order XXI whereupon all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Executing Court and not by way of a separate suit. In order to decide the said legal issue it would be relevant herein to take note of the relevant facts which are as here-in-under---

4. The respondent nos.1 to 6 along with their mother one Jagati Bhar instituted a suit being Title Suit No.164/2012 seeking declaration of their right, title and interest in respect to the landed property as described in the Schedule to the Plaint and for confirmation of their possession in respect to the Schedule land of the said plaint. Additionally a permanent injunction was also sought for restraining the defendant from dispossessing the plaintiffs in Title Suit No.164/2012 and also not to create any disturbance in the peaceful possession of the plaintiffs in Title Suit No.164/2012. It is the case of the plaintiffs in Title Suit No.164/2012 that the plaintiffs by right of inheritance have been enjoying the landed property as described in the Schedule to the plaint. The defendant of the suit one Bharat Lal Kurmi (the Defendant No.7 in T.S. No.132/2017) was making illegal attempts to dispossess the plaintiffs from the said landed property described in the Schedule to the plaint for which the said plaintiffs sought for the reliefs as stated herein above. The Court of the Munsiff No.2 at Karimganj vide the judgment and decree dated 30.07.2016 decreed the suit in favour of the plaintiffs of Title Suit No.164/2012 holding inter alia that the said plaintiffs have got landholder right and possession in respect to the land described in the Schedule to the said plaint and the defendant therein was restrained from interfering into possession of the plaintiffs. As it is relevant for the purpose of deciding the instant lis the operative portion of the said judgment is quoted herein below :

“It is hereby decreed that the plaintiffs have got land holder right and possession in respect of the land pertaining to Survey Dag No.117, 118, 133, 134 covered by patta no. 217 and Dag No.135 covered by Patta No.219 under mouza Baksal Tilla, Pargona Pratapgadh to the extent of the land of their predecessor Late Subhog Bhar and Defendant is restrained from interfering into possession of the plaintiffs.

Suit is decreed with cost. Prepare decree accordingly