Gauhati High Court
Page No.# 1/4 vs Munindra Dhar And Ors on 14 September, 2022
Page No.# 1/4
GAHC010092972022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/30/2022
ANJALI DHAR AND ANR.
W/O SRI MUNINDRA DHAR
RESIDENT OF VILLAGE RAUMARI, PS BHABANIPUR, DIST BARPETA,
ASSAM, 781312.
2: SRI NRIPEN DHAR
S/O SRI MUNINDRA DHAR
RESIDENT OF VILLAGE RAUMARI
PS BHABANIPUR
DIST BARPETA
ASSAM
781312
VERSUS
MUNINDRA DHAR AND ORS.
S/O LATE BASISTHA
RESIDENT OF VILLAGE RAUMARI, PS BHABANIPUR, DIST BARPETA,
ASSAM, 781312.
2:SRI JITENDRA DHAR
S/O SRI MUNINDRA DHAR
RESIDENT OF BARPETA ROAD TOWN
MANASPUR WARD NO. 4
PO BARPETA ROAD
DIST BARPETA
ASSAM 781315.
3:SRI AMEN DHAR
S/O SRI MUNINDRA DHAR
RESIDENT OF VILLAGE RAUMARI
PS BHABANIPUR
DIST BARPETA
ASSAM
Page No.# 2/4
781312.
4:SRI RAMENDRA DHAR
S/O SRI MUNINDRA DHAR
RESIDENT OF VILLAGE RAUMARI
PS BHABANIPUR
DIST BARPETA
ASSAM
781312.
5:SRI NIRANJAN DHAR
S/O SRI MUNINDRA DHAR
RESIDENT OF VILLAGE RAUMARI
PS BHABANIPUR
DIST BARPETA
ASSAM
781312
Advocate for the Petitioner : MR. A C SARMA
Advocate for the Respondent : DR. B AHMED (r-1,2,4)
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
14.09.2022
Heard Mr. B. C. Talukdar, the learned counsel for the appellants and
Mr. S. R. Barbhuiya, the learned counsel appearing on behalf of the
respondent Nos.1, 2 & 4.
This is an appeal under Order XLIII Rule 1 (r) of the Code of Civil
Procedure directed against the order dated 31.03.2022 passed in Misc.(J)
Case No.35/2021 by the Civil Judge, Barpeta whereby the trial court vide
the said order dismissed the injunction application on the ground that the
plaintiffs/ appellants herein did not have any sort of title over the suit
property, and consequently, there is no prima-facie case for going for trial.
Page No.# 3/4
This is an appeal against an order whereby the trial court has
exercised the discretionary jurisdiction. Being so, this is an appeal in
principle against a equitable jurisdiction exercised by the trial court.
The Supreme Court in the case of Wander Ltd. & Another. vs Antox
India P. Ltd., reported in (1990) Suppl. SCC 727 has observed in paragraph
No.14 of the said judgment that unless and until the order passed in
exercise of a discretionary jurisdiction by a court of the first instance is
illegal, arbitrary, irrational and by ignoring the well settled principles of
grant of an injunction, the question of interference of such order does not
arise. Further to that, the Supreme Court observed that the Appellate Court
would normally not to be justified in interfering 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. It was further
observed that the Appellate Court will not assess the materials and sit to
reach a conclusion different from the one reached by the court if the one
reached by the court below is reasonably possible on the materials.
In the backdrop of the above, this Court takes into consideration the
fact of the instant case. It would be seen that the plaintiffs and the
defendants are regulated by Diabhaga system of law.
The property in question admittedly belongs to the respondent No.1
who is the father. As of now, the appellants have no title over the said
property.
Considering the fact that there is no concluded right, the question of
granting an injunction in the instant case does not arise. The trial court,
therefore, rightly rejected the said application holding inter-alia that the
Page No.# 4/4
plaintiffs have no prima-facie case on the ground that they are not the
existing owners of the title holder of the schedule land.
Considering the above, this Court does not find any merit in the
instant appeal for which the instant appeal stands dismissed. Accordingly
the order dated 23.05.2022 passed in I.A.(C) No.1459/2022 stands
vacated.
Send back the LCR.
JUDGE
Comparing Assistant
