Page No.# 1/7 vs On The Death Of Mangi Devi Her Legal ...
2022 Latest Caselaw 4137 Gua

                                                                   Page No.# 1/7

GAHC010214022021




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

                            Case No. : CRP/78/2021

         SEKHAR ROY AND 6 ORS
         S/O. LT. MIHIR KUMAR ROY, R/O. N.N. DUTTA ROAD, NARSINGTOLA, P.O.
         AND P.S. SILCHAR, DIST. CACHAR, ASSAM, PIN-788001.

         2: SOUMENDRA NARAYAN RAY
          S/O. LT. MIHIR KUMAR ROY
          R/O. N.N. DUTTA ROAD
          NARSINGTOLA
          P.O. AND P.S. SILCHAR
          DIST. CACHAR
         ASSAM
          PIN-788001.

         3: SMT. MONISHA ROY (DAS)

          W/O. ASHIT BARAN DAS
          C/O. NARSHING HIGHER SECONDARY SCHOOL
          VIP ROAD
          SADARGHAT SILCHAR
          P.O. AND P.S. CILSHAR
          DIST. CACHAR
          ASSAM
          PIN-788001.

         4: SMT. NAMITA ROY
         W/O. SRI DILIP ROY
          MADHU BHAVAN LANE
          PUBLIC SCHOOL ROAD
          P.O. AND P.S. SILCHAR
          DIST. CACHAR
         ASSAM
          PIN-788001.

         5: AMITAVA ROY
                                                      Page No.# 2/7


S/O. LT. MOHAN LAL ROY
N. N. DUTTA ROAD
SILCHAR
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN-788001.

6: SMT. GAYATRI ROY @ BIVA
 S/O. LT. MOHAN LAL ROY
 N.N. DUTTA ROAD
 SILCHAR
 P.O. AND P.S. SILCHAR
 DIST. CACHAR
ASSAM
 PIN-788001.

7: SMT. SUMITRA ROY
W/O. SRI PIJUSH ROY
 KAMALA ROAD
 SILCHAR
 P.O. AND P.S. SILCHAR
 DIST. CACHAR
ASSAM
 PIN-788001

VERSUS

ON THE DEATH OF MANGI DEVI HER LEGAL HEIRS SMTI KAVITA DAGA
AND 6 ORS (F)
SMT. KAVITA DAGA, W/O. SRI KISHAN KUMAR DAGA OF HOSPITAL
ROAD, SILCHAR, DIST. CACHAR, ASSAM, PIN-788001.

2:SMT. PRABHAWATI BAHETI
W/O. SRI KISHAN KUMAR BEHETI
 R/O. KESHTOPUR
 SOUT KOLKATA
WEST BENGAL
 PIN-700101.

3:SMT. SOBHA DEVI MUNDHRA

W/O. SRI DINDAYAL MUNDHRA
R/O. MUNDHRAKI GALI
P.O. DIDWANA
PIN-341303
RAJASTHAN.
                                                 Page No.# 3/7


            4:KAMAL KISHIRE BIHANI
             S/O. LT. FATEH CHAND BIHANI
             R/O. CENTRAL ROAD
             SILCHAR
             CACHAR
            ASSAM
             PIN-788001.

            5:BIMAL KISHORE BIHANI
             S/O. LT. FATEH CHAND BIHANI
             R/O. CENTRAL ROAD
             SILCHAR
             CACHAR
            ASSAM
             PIN-788001.

            6:SMT. PRITIKONA PAUL

             W/O. SRI SUBODH CHANDRA PAUL
             R/O. N.N. DUTTA ROAD
             NARWSINGTOLA
             P.O. AND P.S. SILCHAR
             DIST. CACHAR
             ASSAM
             PIN-788001.

            7:BORESH PANDEY
             S/O. LT. BOSISH PANDEY
             R/O. CENTRAL ROAD
             SILCHAR
             P.O. AND P.S. SILCHAR
             DIST. CACHAR
            ASSAM
             PIN-788001

Advocate for the Petitioner   : MR. S K GHOSH

Advocate for the Respondent : MR. D MOZUMDER
                                                                       Page No.# 4/7


                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                    ORDER

Date : 27.10.2022

Heard Ms.F.Ahmed, the learned counsel for the Petitioners and Ms. B. Devi, the learned counsel for the Respondents.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 23/9/2021 passed in Misc. Appeal No. 1/2019 whereby the Court below had dismissed the Appeal by affirming the order dated 13/12/2018 passed by the Court of the Civil Judge No. 2, Cachar in Misc. (J) Case No. 29/2018(in connection with Title Suit No. 29/2018).

3. For the purpose of appreciating the facts involved in the instant case, it is relevant to take note of that the Respondents herein had filed a suit being Title Suit No. 29/2018 praying inter alia for a declaration that the path described in the Schedule to the plaint is a common path over which the plaintiffs have right, title and interest to use and enjoy the path without any obstruction or hindrance whatsoever; for a decree against the defendants for removing obstruction by demolition of walls posts, structures sheds raised over the said path by the defendants; for permanent injunction against the defendants from making any encroachment or obstruction over or from causing any damage to and from closing the said path in any manner whatsoever; for mandatory injunction against the defendants to maintain the said path and to remove the obstructions of iron gate from the said path and keep the same fit for use as path for passengers etc.

4. Along with the said suit an injunction application was filed praying inter Page No.# 5/7

alia for an ad-interim temporary injunction against the opposite parties restraining them from blocking the ejmali path of the petitioners by raising any wall in the extreme western boundary of the Opposite Parties land and the eastern side of N.N. Dutta Road and also to pass a temporary mandatory injunction directing the Opposite Parties to remove the iron gate illegally fixed on the middle of the passage of the petitioners leading to N.N. Road, Silchar and to remove all other obstructions from the said passage as described in the Schedule below till the disposal of the suit.

5. The said Application was registered and numbered as Misc.(J) Case No.19/2018. Pursuant to the injunction application being filed, the appellants herein as respondents had filed their written objection.

6. The Trial Court vide an order dated 13/12/2018 after hearing both the parties granted an injunction directing the opposite parties/defendants from disturbing the peaceful use of the Schedule pathway and to remove the obstruction, if any, and the Opposite Parties were also directed to keep the iron gate open existing in the Schedule pathway for all purposes till the disposal of the suit.

7. Being aggrieved, the petitioners herein as appellants had preferred an appeal before the Court of the Additional District Judge(FTC), Cachar at Silchar which was registered and numbered as Misc. Appeal No. 1/2019. The First Appellate Court after taking into consideration the limited scope in interfering with the exercise of the equitable and discretionary jurisdiction of the Trial Court had dismissed the said appeal by taking into account the principles for grant of an injunction.

8. I have heard the learned counsel for the parties and have also perused Page No.# 6/7

both the orders passed by the Trial Court as well as the First Appellate Court.

9. At this stage, this Court would like to refer to the judgment of the Supreme Court in the case of the Wander Limited & Anr. Vs. Antox India P. Ltd reported in (1990) Suppl. SCC 727 and more particularly to paragraph No. 14 wherein the Supreme Court had observed the limited scope of interference in matters pertaining to exercise of equitable discretionary jurisdiction. Paragraph No. 14 of the said judgment being relevant is quoted herein below :-

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."

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10. After hearing the learned counsel for the parties, this Court which presently in exercise of the jurisdiction under 227 of the Constitution and the limited scope of interference is not inclined to interfere with the impugned order of grant of an injunction in view of the fact that from a perusal of both the orders passed by the Trial Court as well as the First Appellate Court, there appears to be no illegality, or irrationality or unreasonableness or any violation to the principles of grant of an injunction.

11. Considering the above, the instant petition stands dismissed.

JUDGE

Comparing Assistant