Page No.# 1/7 vs Page No.# 2/7
2021 Latest Caselaw 2894 Gua

                                                                    Page No.# 1/7

GAHC010039432021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : CRP/26/2021

         AMIR HUSSAIN AND 3 ORS
         S/O LATE IMAN ALI, R/O VILL. BORTOLWA, P.O. AND P.S. DHALIGAON, PIN
         783385, DIST. CHIRANG (BTAD), ASSAM.

         2: AZIZUL HAQUE

          S/O LATE IMAN ALI
          R/O VILL. BORTOLWA
          P.O. AND P.S. DHALIGAON
          PIN 783385
          DIST. CHIRANG (BTAD)
          ASSAM.

         3: AINUL HOQUE

          S/O LATE IMAN ALI
          R/O VILL. BORTOLWA
          P.O. AND P.S. DHALIGAON
          PIN 783385
          DIST. CHIRANG (BTAD)
          ASSAM.

         4: ABDUL KAYUM SARKAR

          S/O LATE KALIMUDDIN SARKAR
          R/O QTR NO. 516-A
          BGR TOWNSHIP
          P.O. AND P.S. DHALIGAON
          PIN 783385
          DIST. CHIRANG (BTAD)
          ASSAM

         VERSUS
                                                                            Page No.# 2/7

            ABDUL MATLEB SARKAR
            S/O LATE KALIMUDDIN SARKAR, R/O VILL. BORTOLWA, P.O. AND P.S.
            DHALIGAON, PIN 783385, DIST. CHIRANG (BTAD), ASSAM.



Advocate for the Petitioner   : MR. A SATTAR

Advocate for the Respondent : MS R SAHA


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 16-11-2021

Heard Mr. A Sattar, learned counsel for the petitioner and Mr. S Biswas, learned counsel for the sole respondent.

2. This application under Article 227 of the Constitution of India, challenging the order dated 18.01.2021, passed by the learned Civil Judge, Chirang at Kalaigaon in Misc Appeal case No.01/2020, whereby the order dated 23.06.2020 passed by the learned Munsiff, Chirang at Kalaigaon in Misc (J) Case No.8/2020 arising out of Title Suit No.1/2020 was confirmed thereby, the order of injunction passed by the trial court restraining the defendants/petitioners herein from going ahead with the construction of the RCC building was confirmed.

3. I have perused the order impugned in the instant proceeding. The facts relevant for the purpose of the disposal of the instant proceeding is that the respondent has filed a suit seeking declaration of the respondent's right of pre-emption over the Schedule-C land (suit land); for declaration that the defendant Nos.2, 3 and 4 are not entitled to any right title and interest over the suit land; for a declaration that the order dated 21.12.2019 passed by the Circle Officer and the Executive Magistrate in Page No.# 3/7

Misc Case No.6/2018-2019 is illegal, void ab-initio; for cancellation of the registered deeds of sale bearing deed Nos.140, 141 and 142 all dated 12.03.2018; for cancellation of the mutation of the names of the defendant numbers 2, 3 and 4; for recovery of possession and for permanent injunction. The said suit was registered and numbered as Title Suit No.1/2020 before the Court of the Munsiff Chirang at Kalaigaon. In the said suit an injunction application was also filed with a prayer to restrain the opposite parties No.2, 3 and 4 who are the petitioners herein from proceeding with the construction over the suit land till the disposal of the title suit. The petitioners herein have filed their written statement in the said suit as well as also filed their written objection to the injunction application. In the written objection filed it was specifically contended that the petitioner i.e, the respondent herein have no prima facie case for grant of injunction inasmuch as, the rights upon which the respondents herein have claimed cannot be made applicable in respect to the suit land. As regards balance of convenience it was stated that the petitioners had constructed the boundary wall and has also started construction of the RCC building and about to complete the process of casting of his roof and any injunction, if passed would cause irreparable loss and injury to the petitioners herein.

4. The trial Court vide an order dated 23.06.2020, after hearing the parties had allowed the injunction application thereby restraining the petitioners herein their men, agents, servants and associates, from proceeding with the construction over the suit land/premises till disposal of the suit.

5. The petitioner being aggrieved by the order of injunction dated 23.06.2018 passed in Misc (J) Case No.8/2020 arising out of Title Suit No.1/2020, preferred an appeal before the Court of the Civil Judge, Chirang Page No.# 4/7

at Kalaigaon. The Appellate Court vide the order dated 18.01.2021 had dismissed the appeal thereby confirming the order of injunction dated 23.06.2020 passed by the trial Court. It is against the said order that the petitioners have approached this Court under Article 227 of the Constitution of India.

6. Mr. Sattar, learned counsel for the petitioner submits that both the Courts below completely failed to take into account the relevant principles of law relating to grant of an injunction. He submits that the plaintiff did not have any right whatsoever over the suit land and the entire case of the plaintiff is based upon a purported oral agreement. He further submits that the balance of convenience which is one of the ingredients to be taken into consideration for the grant of an injunction was also not taken into consideration, inasmuch as the petitioners have incurred huge expenditure in raising the construction and it is half done. In view of the injunction passed by the trial Court the loss which the petitioner would incur and if the construction of the said RCC building is stayed pending disposal of the suit which may take a long time, it would not only result in deprivation of the petitioners' enjoyment over the suit land which the petitioner had purchased for valuable consideration, it would also have a catastrophic effect to the construction which was already been carried out in respect to the RCC building. He further submits that the trial Court failed to take into consideration that the delay in approaching the Court seeking injunction is one of the important facets for grant of an injunction and the plaintiffs have delayed in approaching the Court by around two years and thereby on the principle of acquiescence also, no injunction ought to have been passed.

7. On the other hand, Mr. S Biswas submits that in terms with Section 242 of the Mohamedan Law, the respondent has the right of pre-emption over the suit land and the sale which have been made to the defendant Page No.# 5/7

Nos.2, 3 and 4 vide the deeds of law impugned in the suit is in violation to the law and as such, the petitioner is not entitled to any benefits on the basis of those impugned deeds of sale which have no sanctity in the eyes of law. He further submits that if the injunction sought for is interfered with, the petitioner may go ahead with the construction which may affect him if a decree is passed in his favour because the nature and character of the suit land would be changed.

8. I have heard both the learned counsel for the parties at length.

9. For granting of injunction the three relevant aspects which need to be taken into consideration are prima facie, balance of convenience and irreparable injury. As held by the Supreme Court in the case of Dalpat Kumar and Anr, Vs. Prahlad Singh & Ors reported in (1992) 1 SCC 719, the Supreme Court held that prima facie means there is a substantial question raised, bonafide which needs investigation and a decision on merits. In the same judgment the balance of convenience was interpreted to mean the substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side, if the injunction is granted. The third aspect as regards irreparable injury have been explained in Best Sellers Retail (India) (P) Ltd. v. Aditya Birla Nuvo Ltd., reported in (2012) 6 SCC 792 by the Supreme Court wherein it was observed that the meaning of an irreparable injury is if not prevented by an injunction cannot be afterwards compensated by a decree which the court can pronounce in the result of the cause.

10. In the backdrop of the above, let me analyze the facts in the instant case. The claim of the plaintiff of his right of pre-emption under Section 242 of the Mohemedan law would no doubt be a case falling within the ambit of prima facie for grant of an injunction. But that itself would not be Page No.# 6/7

enough for grant of an injunction. Other relevant aspects are the balance of convenience as well as irreparable loss, harm and injury. It is the specific case of the petitioner that in the year 2018 the plaintiff/petitioner had purchased a plot of land and thereafter has raised the boundary wall and started construction of the RCC building and the suit was filed at the stage of casting of the roof of the RCC building.

11. The learned counsel for the petitioner during the course of hearing upon instructions submitted that in case the plaintiff succeeds in the suit then in that regard the petitioner would have no objection to hand over the khas possession of the land along with the RCC building which they propose to construct and for that matter the plaintiff need not file any separate application for mandatory injunction. The counsel of the respondent submits that if such undertaking given in record, the respondent has no objection.

12. In view of the said undertaking and taking into consideration that if the construction of the half done RCC building is stopped at this stage, it would not only lead to deprivation of the right of the petitioners in respect to the enjoyment of the land but the loss which would be caused due to adversarial affect on the construction of the structure of the RCC building already built which at a later stage, if the suit is dismissed, the petitioner would not be able to recuperate at a later stage, I am of the opinion that the impugned orders are liable to be interfered with.

13. In view of the said undertaking given by the learned counsel for the petitioner and what has been stated herein above the loss which may occasion to the petitioner and substantial mischief which would result upon the petitioner, I am of the opinion that the impugned orders by which the injunction was granted to stop the construction of the RCC building of the petitioners are hereby set aside. The petitioners are at liberty to go ahead Page No.# 7/7

with the construction of the RCC building solely at their own risk and costs. It is however made clear that in case the plaintiff succeeds in the suit, the petitioners who have given an undertaking before this Court would be bound to not only hand over the khas possession of the suit land along with the proposed to be fully constructed RCC building but also cannot raise the objection that in absence of any specific belief as regards the RCC Building and a decree for mandatory injunction, the plaintiff would not entitled to recovery of the possession of the proposed RCC Building to be constructed. It is clarified that the plaintiff succeeding in the suit would mean that the dispute in the suit stands finally decided between the parties.

14. With the above observation, the instant petition stands allowed. No costs.

JUDGE

Comparing Assistant