Babulal Surana vs Meena Paul And 6 Ors
2021 Latest Caselaw 2919 Gua

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GAHC010061162019




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

                         Case No. : CRP(IO)/77/2019

         BABULAL SURANA
         SON OF LATE BAL CHAND SURANA, MAHABIR ROAD, WARD NO. 6,
         KHARUPETIA TOWN, P.O. KHARUPETIA- 784115, DIST. DARRANG, ASSAM.



         VERSUS

         MEENA PAUL AND 6 ORS.
         W/O. SRI SUBHASH PAUL, RESIDENT OF MAHABIR ROAD, WARD NO.6,
         KHARUPETIA TOWN, P.O. KHARUPETIA- 784115, DIST. DARRANG, ASSAM.

         2:SUBHASH PAUL
          S/O. SRI PRASHAD CHANDRA PAUL
          RESIDENT OF MAHABIR ROAD
         WARD NO.6
          KHARUPETIA TOWN
          P.O. KHARUPETIA- 784115
          DIST. DARRANG
         ASSAM.

         3:RANJIT PAUL
          S/O. SRI PRASHAD CHANDRA PAUL
          RESIDENT OF MAHABIR ROAD
         WARD NO.6
          KHARUPETIA TOWN
          P.O. KHARUPETIA- 784115
          DIST. DARRANG
         ASSAM.

         4:STATE OF ASSAM
          REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
          MUNICIPAL ADMINISTRATION
          DISPUR
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             GUWAHATI-781006.

            5:KHARUPETIA TOWN COMMITTEE
             REP. BY THE CHAIRMAN
             KHAURPETIA TOWN COMMITTEE
             P.O. KHARUPETIA- 784115
             DIST. DARRANG
            ASSAM.

            6:THE CIRCLE OFFICER

             DALGAON REVENUE CIRCLE
             P.O. DALGAON- 784116
             DIST. DARRANG
             ASSAM.

            7:THE SUB-REGISTRAR
             MANGALDOI
             P.O. MANGALDOI- 784125
             DIST.- DARRANG
            ASSAM

Advocate for the Petitioner   : MR. N DHAR

Advocate for the Respondent : GA, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 17-11-2021

Heard Mr. N. Dhar, the learned counsel appearing for the petitioner. Also heard Ms. R. Choudhury, the learned counsel appearing for the respondents.

This is an application under Article 227 of the Constitution of India against the Judgment and Order dated 01.03.2019, passed by the learned District Judge, Mangaldoi in Misc. Appeal No. 4/2017.

The facts necessary for disposal of this petition lies within a short campus. It is an admitted fact that a 12 ft. wide and 65 ft. long passage connects the land of the Page No.# 3/5

respondents to Mahabir road. It is also an admitted fact that the said passage is situated on the land of the respondents. Inspite of that the petitioner, whose land is situated by the side of the aforesaid passage, also uses that passage. The respondents have some business establishments in their land. Therefore, large trucks travel through that passage. Sometimes large amount of building materials like bricks, stones etc are kept piled up on the road and this act on the part of the respondents cause disturbances to the petitioner, who claims it to be an act of nuisance. Both sides admitted that the passage is also used by some other people of the locality and because of the aforesaid acts of the respondents, they are facing hardship.

Stating the aforesaid facts, the petitioner filed the suit in the Court of Civil Jude, Darrang, Mangaldoi, seeking, interalia, a decree declaring that the respondents have no right to use the aforesaid passage for the purpose of carrying goods in big trucks to their gowdown, situated in their land. The petitioner also sought for a decree restraining the respondents from parking commercial vehicles in the passage, which the petitioner claims to be situated in a residential area.

Along with the plaint, a petition under order 39, rule 1 and 2 of the CPC was also filed and it was registered as Misc(J) Case No. 58 of 2016.

After hearing both sides, the trial Court granted the prayer for ad-interim injunction on 08.05.2017.

Thereafter, the matter was taken to the Court of the District Judge on appeal. In its order dated 01.03.2019, the appellate Court disagreed with the decision of the trial Court and set aside the order dated 08.05.2017. The appellate Court held that the three ingredients namely, prima facie case, irreparable damage and balance of convenience are not available in the given facts.

The primary contention of Mr. Dhar is that the petitioner is aged more than 70 years and the acts of the respondents have made him unwell. Mr. Dhar has strenuously argued that the acts of the respondents constitute nuisance.

Per contra, Ms. Choudhury has submitted that the passage is situated on the land of the respondents and it is the only passage to the public road. Ms. Choudhury Page No.# 4/5

further submitted that the petitioner has an alternative road which connects the main road. According to Ms Choudhury, the respondents are businessmen and they have godown in their land. So, it is necessary for them to bring goods in trucks.

I have bestowed my anxious considerations to the submission made by the learned counsels of both sides.

At the outset, I am constrained to hold that the petitioner has filed the suit unnecessarily. With the recent boom in the economy of our country, the business activities are flourishing. The respondents have a godown in their land and they uses the passage, which connects the land of the respondents with the public road, to bring goods to their godown and to send goods from their godown. The passage falls within the land of the respondents. Out of sheer benevolence, the respondents allow the petitioner to use that passage to go from the main road to his house. Because of stock piling of goods on the road and because of parked trucks, the petitioner finds it difficult when he goes out of his house or when he comes to his house.

This Court is of the opinion that the petitioner have failed to establish a prima facie case in his favour for granting ad-interim injunction. The respondents are title holders in respect of the passage. Therefore, if prohibitory order is passed at the behest of the petitioner, it is the respondents who would suffer irreparable damage and therefore, the balance of convenience for granting ad-interim injunction does not go in favour of the petitioner.

The learned District Judge has correctly appreciate available materials and therefore, arrived at a correct finding. This Court finds that there is no merit in the revision petition. The impugned order dated 02.03.2019, passed in Misc. Appeal No. 4/2017 is affirmed.

At this point, both sides have agreed that they would have no objection, if the petitioner along with other person of the locality are allow to use the passage, in order to go to the public road and to return from it, to go to their own lands.

The passage stands on the land of the respondent. Therefore, it is the respondents who should decide that matter, not this Court.

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With the aforesaid observation, the revision petition is dismissed.

JUDGE

Comparing Assistant