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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
Rajib Kumar Das S/o Late Bhakti Priya Das Gupta – Appellant
Versus
Sekhar Paul S/o Shri Sunil Chandra Paul – Respondent
F.A.O. No. 2 of 2022
Decided On : 04-08-2022
Code of Civil Procedure, 1908 - Section 151 - Order XLIII Rule 1(r), Order XXXIX Rule 7 - Transfer of Property Act, 1882 - Section 108(P) - Appeal - Grant of temporary injunction - Seeking for a decree declaring right, title and interest - Recovery of khas possession - Removing defendant and his men and agents and by dismantling all unauthorized and illegal constructions, structures - Whether there was a balance of convenience for purpose of grant of injunction - Court below failed to take into consideration that purchase made vide Deed of Sale bearing Deed was a purchase of leasehold right and was not a Deed of Sale purchasing right, title and interest over suit land.
Findings of the Court:
In suit specific case of plaintiffs is that during pendency of Title Suit, in month of February, 2021 defendant has forcefully dispossessed plaintiffs over suit land which plaintiffs were possessing pursuant to surrender of possession made by Late Mahesh Chandra Das. On other hand, defendant’s case is that they were handed over by successor in interest of Mathura Mohan Das pursuant to Deed of Sale being executed - Court below held that there would not be any irreparable injury inasmuch as in event plaintiffs succeeds in suit, they could always get purported construction over suit land demolished at cost of defendant - When very right of defendant to construct is an issue pending before Court and taking into account suit was filed immediately after dispossession and there being no materials placed on record to effect that defendant had spent huge amount of money on construction, Court below ought to have passed an injunction stopping such construction if so made.
Result: Appeal disposed of.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. S.D. Purkayastha, the learned counsel appearing on behalf of the Appellants and Mr. S. Biswas, the learned counsel appearing on behalf of the Respondent.
2. This is an appeal under Order XLIII Rule 1(r) challenging the order dated 06.12.2021 passed in Misc. (J) Case No. 58/2021 arising out of Title Suit No. 24/2021.
3. It is relevant herein to mention that alongwith the instant appeal, there is also an application filed under Order XXXIX Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908, for grant of temporary injunction. The said application has been registered and numbered as I.A.(Civil) No. 2/2021. It is pertinent herein to mention that in the said application seeking injunction, the appellant therein sought for an injunction to restrain the Opposite Party and his men and agents from further continuing the illegal and unauthorized construction over the land described in Schedule-II as well as from restraining the opposite party from alienating the Schedule-II land in favour any third party.
4. For the purpose of adjudication of the instant appeal, the parties herein are in same status as they stood before the Trial Court. The three plaintiffs in the suit claims to be the successor in interest of one Late Jogesh Chandra Das Gupta. It has been mentioned that Late Jogesh Chandra Das Gupta during his lifetime donated his land to his wife Nirupama Das Gupta and accordingly her name was mutated in the suit patta. Later Nirupama Das Gupta died leaving eight sons i.e. the predecessor of the Plaintiff Nos. 1, 2 and 3 and their five brothers who became the owners over 25 Bighas 11 Kathas 10 Chataks of land in the suit patta. On the basis of the partition, the plaintiffs claimed to be the owner over 3 Kathas of land over Dag No. 118 of the suit patta as described in the schedule by amicable arrangement with other co-sharers.
5. It is the further case of the Plaintiffs that one Late Mathura Mohan Das alias Mathura Mohan Mahaisa Das during his lifetime took settlement of 3 Kathas of land in Dag No. 118 of 2nd R.S. Patta No. 37 from Jogesh Chandra Das Gupta, the predecessor of the above plaintiffs about 60 years back. The said Mathura Mohan Das was in possession of the above mentioned land as tenant, and he left behind one son namely Mahesh Chandra Das and three daughters namely Smt. Charu Das alias Charu Mazumder, Smt. Anindita Das and Smt. Hiron Bala Das alias Hiron Bala Nath and also the heirs of his deceased son Mahesh Chandra Das namely Mihir Das and two daughters namely Rekha Das and Aparna Das.
6. Subsequent to the death of Mathura Mohan Das, his son Mahesh Chandra Das was in occupation of the property mentioned in the Schedule. On 25.11.2019 the said Mahesh Chandra Das surrendered the aforesaid bhit land to Plaintiff No. 1 by taking Rs. 80,000/- and accordingly executed a Swaranlipi in favour of the Plaintiff No. 1 in presence of witnesses. Moreover, on delivery of Khas possession, the said Mahesh Chandra Das had also executed a Deed of Istafanama (Deed of Release) in favour of the plaintiff No. 1 at Pailapool on the same day and the same was duly notarized thereafter at Silchar and since then the property is in possession of the plaintiffs. It is the further case of the plaintiffs that in the last week of November, 2020 the defendant started publicizing in the locality that the suit property belongs to him as he purchased the same. The Plaintiffs thereafter made enquiries and could locate a Sale Deed executed by the heirs of Mathura Mohan Das and the heirs of Mahesh Chandra das on 05.11.2020 registered before the In-charge Deputy Register, Cachar vide Deed No. 933/879 of 2020 over the lands mentioned in Schedule-II in the plaint. The Plaintiffs thereafter took out the certified copy of the alleged Deed on 18.12.2020 and came to learn for the first time that the defendant purchased the jote right of land measuring 2 Kathas 8 Chataks out of the Schedule-I land alongwith one As
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