IMPORTANT POINT
The need for a prima facie case, clarity in the description of the suit land, and consideration of balance of convenience and irreparable loss, harm, and injury are crucial in granting injunctions.

JUDGMENT :

This is an application under Article 227 of the Constitution challenging the order dated 27.03.2024 passed by the Court of the Additional District Judge, Goalpara in Misc. Appeal No.06/2023 whereby the learned First Appellate Court had set aside the order of temporary injunction dated 21.08.2023 passed by the learned Civil Judge (Senior Division), Goalpara in Misc.(J) Case No.29/2023 arising out of Title Suit No.34/2023.

2. For the purpose of deciding as to whether the learned First Appellate Court was within it jurisdiction to interfere with the order passed by the learned Trial Court, this Court would like to take note of the brief facts which led to the filing of the instant proceedings.

3. The petitioner herein as plaintiff had instituted a suit claiming inter-alia that a plot of land measuring 2 kathas 8 lechas originally belonged to the father of both the plaintiff as well as the defendant No.1. Upon the death of their father, it was mutually agreed that the brothers, i.e. the plaintiff and the defendant No.1 would claim right in respect to 1 katha 1 lecha of land each and the remaining land which is around 6 lechas would be a suit path. This suit path has been specifically described in Schedule-C to the plaint.

4. In the instant proceedings, a material aspect has been duly admitted by the plaintiff that there was a boundary wall on the northern side of the plaintiff’s land abutting the land of the defendant No.1 which was also the specific case of the defendant No.1 in the written statement. This aspect came into light upon filing of an additional affidavit to bring to the notice of the Court that in view of the construction raised by the defendant No.1, the boundary wall had fallen.

5. The dispute between the plaintiff and the defendant No.1 is primarily the Schedule-C land or for that matter as to whether there exists a common path beyond the boundary wall on the northern side of the plaintiff’s land. It is also seen that in the suit, the plaintiff had sought for declaration of his right, title and interest over the suit land though at paragraph Nos.5 & 6 of the plaint, it is the categorical case of the plaintiff that this suit land is a common land between the plaintiff and the defendant No.1. In addition to that, the plaintiff has challenged the Deed of Sale executed by the defendant No.1 in favour of the defendant No.2 on the ground that this 4 lechas of land which forms the Schedule-C land was sold by the defendant No.1 to the defendant No.2 vide the said Sale Deed. The plaintiff also sought for permanent injunction and also for correction of the records. It is however interesting to mention that although the Goalpara Municipal Authorities have been made a party to the said proceedings, there has been no relief sought for against the said Municipal Body.

6. The defendants filed their written statement-cum-counterclaim denying the case of the plaintiff. It is however interesting to mention that in the counterclaim, the land owned by the father of the plaintiff and the defendant No.1 was stated to be 3 kathas 1 lecha and has been specifically described in Schedule-A to the counterclaim. It was also mentioned that the plaintiff has encroached upon 5.5 lechas of land including a portion of 4 feet width land of the common passage, and as such, sought for declaring that the counter claimant No.1 has every right, title and interest in respect to Schedule-D, 5.5 lechas excess land and for recovery of the said Schedule-D land. In addition to that, the defendant/counter claimant has also sought for partition of the Schedule-A land on equal basis and other reliefs.

7. The learned Trial Court during the pendency of the injunction proceedings, instituted a proceedings under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 and sought for a report upon inspection. An inspection report was submitted to that effect that the setback maintained by the defendant on the north and the east side was in accordance with the Bui