IMPORTANT POINT
A temporary injunction cannot be granted without discussing essential principles, and a property owner cannot be restrained from using their property without a strong prima facie case.

JUDGMENT :

(Mridul Kumar Kalita, J.)

1) Heard Mr. N. Haque, learned counsel for the petitioner. Also heard Mr. F. U. Barbhuiya, learned counsel for the respondent no.1.

2) This application under Article 227 of the Constitution of India has been filed by the petitioners impugning the order dated 20.05.2024 passed by the Court of the learned Civil Judge (Junior Division) No. 3, Karimganj in Misc. Case No. 366/2024 arising out of Title Suit No. 376/2023, whereby the present petitioner was directed not to make any construction over the extended area (on the Western side of the land of the present petitioner) until further orders.

3) The facts relevant for consideration of the instant revision petition are that the respondent No.1 herein had filed a Title Suit as plaintiff which has been registered as Title Suit No. 376/2023 in the Court of learned Civil Judge (Junior Division) No. 3, Karimganj.

4) In the said suit, the respondent No.1, as plaintiff has prayed for a declaration of right of way to the house of the respondent No.1 and pro-forma respondents (who are arrayed as defendant Nos. 2 and 3 in Title Suit) over the second Schedule suit path which is the part of First Schedule suit path. The respondent No.1 has also prayed for demolition of RCC structure made over the second Schedule Path by the present petitioner.

5) The respondent No. 1 has also prayed for a permanent injunction restraining the present petitioner from further construction over the second Schedule suit land and/or any other relief to which the respondent No.1 has found to be entitled to.

6) The respondent No.1 and the pro-forma respondents had purchased a plot of land within Dag No. 280 of Khatian No. 814 of Mouza – Bakarshal Part-II of Porgona – Egarasati.

7) It is contended by the respondent No. 1 in his plaint that the land purchased by him is a residential plot of land it has no path for egress and ingress to the national highway (PWD Road situated towards Southern side of land).

8) The respondent No.1 and pro-forma respondents approached the present petitioner for allowing them to use first Schedule land as path for egress and ingress for national highway to their residential houses and accordingly, an agreement was executed between the present petitioner and the respondent No. 1 and pro-forma respondents for use of road of way over land of the present petitioner by the respondent No.1 and pro-forma respondents (1st Schedule land).

9) It was also agreed that if the petitioner intends to sell the said Schedule path, he would do so in favour the respondent No. 1 and pro-forma respondents as per market price. As per the terms and conditions of the said agreement dated 12.05.2005, the respondent No. 1 and pro-forma respondents have been using the Schedule path for the egress and ingress.

10) It is also contended in the plaint of the respondent No. 1 that during the first part of April 2023 when the respondent No.1 and his family members went out of station for some days, after returning back he found that the petitioner has constructed a CI sheet pakka house on the southern side of the Schedule -2 suit path.

11) It is also contended in the plaint of the respondent No. 1 that while the RCC construction was going on, the petitioner allowed the respondent No. 1 and pro-forma respondent to use his vacant land situated on the Western and Northern side of the construction for temporary house as path during the period of the said construction.

12) During the pendency of the aforesaid Title Suit the respondent No. 1 had also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908, praying for grant of temporary injunction restraining the present petitioner from any further construction over the second Schedule suit path to change its nature and feature till disposal of the suit. The said case was registered as Misc Case No. 591/2023.

13) The present petitioner filed a written objection objecting to grant of any such temporary inju