Page No.# 1/ vs Bidhu Bhusan Hazarika @ Biblu ...
2021 Latest Caselaw 3163 Gua

                                                             Page No.# 1/11

GAHC010061792021




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

                      Case No. : I.A.(Civil)/840/2021

         JAYANTA LEKHARU AND 6 ORS.
         S/O. LATE CHENIRAM LEKHARU, R/O. KRISHNA NAGAR, CHANDMARI,
         GHY- 3, DIST. KAMRUP(M), ASSAM

         2: HEMANTA LEKHARU
          S/O- LATE CHENIRAM LEKHARU
          R/O- KRISHNA NAGAR
          CHANDMARI
          GUWAHATI- 781003
          DIST.- KAMRUP(METRO)
         ASSAM

         3: DINA LEKHARU
          D/O- LATE CHENIRAM LEKHARU
          R/O- KRISHNA NAGAR
          CHANDMARI
          GUWAHATI- 781003
          DIST.- KAMRUP(METRO)
         ASSAM

         4: LAYANTA LEKHARU
          D/O- LATE CHENIRAM LEKHARU
          R/O- KRISHNA NAGAR
          CHANDMARI
          GUWAHATI- 781003
          DIST.- KAMRUP(METRO)
         ASSAM

         5: RITA LEKHARU
          D/O- LATE CHENIRAM LEKHARU
          R/O- KRISHNA NAGAR
          CHANDMARI
          GUWAHATI- 781003
          DIST.- KAMRUP(METRO)
                                                             Page No.# 2/11

ASSAM

6: SMTI. MTI RUBI LEKHARU SAIKIA
W/O- DR. JUGESWAR SAIKIA
 R/O- COLLEGE OF VETERINARY SCIENCE
 KHANAPARA
 GUWAHATI- 781022
 DIST.- KAMRUP(M)
ASSAM.

7: SMTI. PARUL LEKHARU DAS
W/O- PRANJIT DAS
 R/O- HATIGAON
 GUWAHATI- 781038
 DIST.- KAMRUP(M)
ASSAM

VERSUS

BIDHU BHUSAN HAZARIKA @ BIBLU HAZARIKA AND 26 ORS.
S/O. LATE LAMBESWAR DAS, R/O. JAIL ROAD, P.O., P.S. AND DIST. JORHAT,
ASSAM

2:SMTI. RUMA HAZARIKA
W/O- LATE INDU BHUSAN HAZARIKA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

3:MANASH INDU HAZARIKA
 S/O- LATE INDU BHUSAN HAZARIKA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

4:SMTI. MANURAMA HAZARIKA
 D/O- LATE LAMBESWAR DAS
 R/O- JAIL ROAD
                                Page No.# 3/11

JORHAT
BLOCK NO. 10 OF JORHAT TOWN
MOUZA
P.O.
P.S. AND DIST.- JORHAT
ASSAM
PIN- 785001.

5:BASANTA KUMAR GOHAIN
 S/O- LATE BHOLA NATH GOHAIN
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

6:PADMA PHUKAN
 S/O- LATE PHULESWAR PHUKAN
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

7:RUDRA KANTA BORA
 S/O- PADMESWAR BORA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

8:UMESH BORA
 S/O- LATE BHOTARAM
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
                                 Page No.# 4/11

P.S. AND DIST.- JORHAT
ASSAM
PIN- 785001.

9:JUGAL CHANDRA DOLOI BARUAH
 S/O- LATE PADMADHAR
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

10:BIPIN CH BHARALI
 S/O- LATE ADIRAM
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

11:RATNESWAR KALITA
 S/O- LATE PURNA KANTA KALITA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

12:LEHKARAM CHANDRA SAIKIA
 S/O- LATE DURGESWAR
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.
                                 Page No.# 5/11

13:SABITA THAKUR
W/O- UMESH THAKUR
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

14:GANESH CHANDRA BORA
 S/O- LATE RUPRAM BORA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

15:JITENDRA NATH SANGMAI
 S/O- LATE KABIRAM SAGMAI
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

16:LAKHI NATH BORUAH
 S/O- PADMESWAR BORUAH
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

17:SANJIB BORGOHAIN
 S/O- LATE KULADHAR BORGOHAIN
 R/O- JAIL ROAD
 JORHAT
                                 Page No.# 6/11

BLOCK NO. 10 OF JORHAT TOWN
MOUZA
P.O.
P.S. AND DIST.- JORHAT
ASSAM
PIN- 785001.

18:KAMAL MORANG
 S/O- LATE BORMANUH MORANG
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

19:JAYANTA PRASAD HAZARIKA
 S/O- LATE GIRISH CH HAZARIKA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

20:DIMBESWAR GOGOI
 S/O- LATE BORKON GOGOI
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

21:SMTI. KALPONA GOGOI
W/O- DIMBESWAR GOGOI
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
                                   Page No.# 7/11

ASSAM
PIN- 785001.

22:JAYANTA KUMAR SARMA
 S/O- LATE LAKHI NATH SARMA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

23:NITU KUMAR GOGOI
 S/O- LAKHESWAR GOGOI
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

24:SMTI. MAYA CHUTIA
W/O- LATE KHAGENDRA NATH CHUTIA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

25:RATUL HAZARIKA
 S/O- LATE INDUBHUSAN HAZARIKA
 R/O- JAIL ROAD
 JORHAT
 BLOCK NO. 10 OF JORHAT TOWN
 MOUZA
 P.O.
 P.S. AND DIST.- JORHAT
ASSAM
 PIN- 785001.

26:SMTI. RINA LEKHARU SAIKIA
                                                                              Page No.# 8/11

             W/O- LATE CHANDRAMOHAN SAIKIA
             R/O- DOWNTOWN
             RUKMININAGAR
             GUWHATI- 781006.

             27:SMTI. ANU LEKHARU SAIKIA
             W/O- DR. JOGENDRA SAIKIA
              R/O- HENGRABARI
              GUWAHATI- 781036
              DIST.- KAMRUP (M)
             ASSAM

Advocate for the Petitioner   : MR. D DAS SR. ADV

Advocate for the Respondent : MR. S DEKA

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 29 .11.2021

Heard Mr. D. Das, learned senior counsel appearing for the applicants as well as Mr. B. Dutta, learned counsel representing the opposite parties.

2. This is an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure.

3. Both sides have locked horns over a plot of land measuring 6 bighas 3 kathas 17 lechas in Title Suit No. 16/2010 pending in the Court of the Civil Judge, Jorhat. The present applicant was one of the defendants in the suit. The suit land as shown in Schedule-A of the plaint reads as under:

SCHEDULE-A (Suit Land)

6B 3K 17 L out of total land in PP No. 97 (old) 241 (new), Dag No. 7169, 7170, 7172, 7171, 7134, 7162 of Block No. 10 Jorhat town Mouza.

4. Therefore, the suit land does not have any boundaries so that it can be identified. Be that as it may, the plaintiffs and the defendants of the suit are the legal Page No.# 9/11

heirs of late Lambeswar Das. The property is still a joint property as because no partition was done in respect of the property. Most of them do not reside in the suit land. They reside in different parts of the State. On one occasion, the plaintiffs of the suit demanded their share in the said land. On the aforesaid facts, the plaintiffs of the suit prayed before the court for a decree declaring that they have right of inheritance in respect of the suit land. The plaintiffs also, inter alia, prayed that the suit land should be partitioned between each co-sharers.

5. The defendants contested the suit by filing written statement. Ultimately, all conclusion of investigation, the Court of the Civil Judge at Jorhat dismissed the suit holding that the plaintiffs of the suit are not entitle to get a decree as prayed for.

6. Thereafter, they filed the first appeal in the Court of the Additional District Judge, Jorhat which was numbered as Title Appeal No. 9/2014. The appellate Court reversed the judgment of the trial Court and decreed the suit.

7. On being aggrieved by the judgment of the first appeal, the defendants of the suit filed a second appeal under Section 100 of the Code of Civil Procedure. That appeal being RSA 90/2020 is still pending in this Court.

8. Mr. Das has submitted that the present applicant being the appellant in the second appeal is a son of late Lambeswar Das and, therefore, he has a legal right over his share of the land left behind by his deceased wife. According to Mr. Das, the respondents of the appeal have entered into an agreement with a builder to construct a commercial and residential building upon the entire land and if that is done the applicants would be deprived of a share of the land which his father has left behind.

9. Per contra, Mr. Dutta has submitted that the Schedule-A land as shown in the plaint is not identified and that is the reason why in the present application they have put a boundary. Now, in the interlocutory application the Schedule-A land looks different. The Schedule-A land is shown as below:

Page No.# 10/11

SCHEDULE-A (Suit Land)

Land measuring 6 Bighas 3 Kathas 17 Lechas in PP No. 97 (old), 241 (new) and Dag No. 7169, 7170, 7171, 7172, 7134, 7162 of Block No. 10 Jorhat town Mouza.

      East :           Land of Mr. Jibonot Gohain.

      West :           Jail Road.

      North :           Land of Mrs. Sashiprabha Buragohain.

      South:            Lambeswar Hazarika Path.

10. Mr. Dutta further submits that this fact of addition of boundaries in the interlocutory application is not permissible in law because an unidentifiable plot of land has been made identifiable. According to Mr. Dutta, in case of an unidentifiable land no decree can be executed.

11. I have given my anxious consideration to the submissions made by the learned counsels for the both sides.

12. In this case, two distinct facts are not disputed. One is that, the land was once owned by late Lambeswar Das and the second fact is that, the present applicant/appellant is a son of late Lambeswar Das. Therefore, on the face of the record, it is clear that the applicant/appellant is entitled to a share in the land. If a residential or commercial multistoried building is constructed on the entire Schedule-A land, it is the applicant/applicant who would suffer irreparable loss.

13. Now, this Court finds that there exist a clear prima facie case for granting ad - interim injunction in favour of the applicant/appellant. If a building is constructed on the entire land, the appellant/applicant would be deprived of getting his share of the land left behind by his father and, therefore, he will suffer an irreparable loss.

14. Under the aforesaid circumstances, the balance of convenience of granting ad-interim injunction goes in favour of the applicant/appellant.

15. The Regular Second Appeal is still pending for disposal. This is one of the reasons Page No.# 11/11

for granting an ad-interim injunction.

16. Under the aforesaid premises reasons, this Court hereby directs the respondents not to undertake any construction or further construction in the suit land till disposal of the second appeal. They are also directed not to change the nature and character of the suit land nor will they alienate any part of the suit land till disposal of the connected appeal.

17. With the aforesaid directions, the prayer made by the applicant/appellant is allowed and the Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant