Gauhati High Court
Abdul Aziz Sk vs Amir Ali And 7 Ors on 8 May, 2023
Page No.# 1/4
GAHC010059182023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/773/2023
ABDUL AZIZ SK.
S/O- LATE AKHI SK., R/O- VILL.- UTTAR RAIPUR PART-I, P.O. AND P.S.
GOLAKGANJ, DIST.- DHUBRI, ASSAM, PIN- 783334.
VERSUS
AMIR ALI AND 7 ORS.
S/O- LATE FAZAR ALI,
2:JAMIR ALI
S/O- LATE FAZAR ALI
3:ABDUL HYE SK.
S/O- LATE MOINAL SK.
4:ABDUL RAHMAN
S/O- LATE MOINAL SK.
5:SAHIDUR (SAJA)
S/O- LATE AKSAR ALI
6:ANOWAR ALI
S/O- LATE HABIBAR RAHMAN
7:AMINUR RAHMAN
S/O- MOHIR UDDIN
8:AWAL MOZID
S/O- ASAN ALI
ALL ARE RESIDENTS OF VILL.- UTTAR RAIPUR PART-I
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P.O. AND P.S. GOLAKGANJ
DIST.- DHUBRI
PIN- 783334
Advocate for the Petitioner : MR F U BARBHUIYA
Advocate for the Respondent : MR. P M KALITA
Linked Case : RSA/253/2019
ABDUL AZIZ SK.
S/O- LATE AKHI SK.
R/O- VILL.- UTTAR RAIPUR PART-I
P.O. AND P.S. GOLAKGANJ
DIST.- DHUBRI
ASSAM
PIN- 783334.
VERSUS
AMIR ALI AND 7 ORS.
S/O- LATE FAZAR ALI
2:JAMIR ALI
S/O- LATE FAZAR ALI
3:ABDUL HYE SK.
S/O- LATE MOINAL SK.
4:ABDUL RAHMAN
S/O- LATE MOINAL SK.
5:SAHIDUR (SAJA)
S/O- LATE AKSAR ALI
6:ANOWAR ALI
S/O- LATE HABIBAR RAHMAN
7:AMINUR RAHMAN
S/O- MOHIR UDDIN
8:AWAL MOZID
S/O- ASAN ALI
ALL ARE RESIDENTS OF VILL.- UTTAR RAIPUR PART-I
P.O. AND P.S. GOLAKGANJ
DIST.- DHUBRI
Page No.# 3/4
PIN- 783334.
------------
Advocate for : MR F U BARBHUIYA
Advocate for : MR. P M KALITA appearing for AMIR ALI AND 7 ORS.
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
08.05.2023.
1. Heard Mr. F. U. Barbhuiya, learned counsel for the applicant. Also
heard Mr. R. Sarma, learned counsel for the opposite party.
2. The present application is filed under Order XXXIX Rule 1 and 2 read
with Section 151 of the Code of Civil Procedure, 1908 with a prayer to
pass an injunction order restraining the opposite parties from demolishing
and dispossessing the petitioner/plaintiff from the suit Schedule land as
mentioned at Page 9 of this application.
3. The plaintiff filed a suit for declaration of right, title and interest and
recovery of Schedule A and Schedule B land from the defendant. The said
suit being Title Suit No. 408/2013 was dismissed by learned Munsiff No. 1
under its Judgment and Decree dated 08.05.2018 and an appeal being
Title Appeal No. 24/2018 was also preferred before the learned Civil
Judge, Dhubri. Such appeal was also dismissed by Judgment and Decree
dated 19.06.2019 and accordingly the connected Second Appeal was filed
which was admitted by this Court under its order dated 20.10.2020.
4. The appellant has pleaded that that defendants are trying to
dispossess him from the suit land. Therefore, an order of injunction
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restraining the opposite parties from demolishing and dispossessing the
petitioner/plaintiff from the suit Schedule land as mentioned at Page 9 of
this application has become necessary.
5. Per contra Mr. R. Sarma, learned counsel for the opposite parties has
submitted that the opposite party has not tried to dispossessed the
appellant rather the opposite parties are possessing the suit land
inasmuch as the plaintiff/applicant has lost his suit before both the learned
Court below and therefore, at this stage, the peaceful possession of the
defendants over the suit land shall not disturbed by any order of
injunction.
6. Admittedly, the suit is for recovery of possession and fact also remains
that the prayer for plaintiffs for declaration of right, title, interest and
recovery of possession has been refused by both the learned Courts
below.
7. Considering the matter in its entirety, this Court is of the view that the
enjoyment of the opposite parties over the suit land shall not be disturbed
at this stage of the proceeding.
8. Accordingly, it is provided that the opposite parties shall not have any
restriction to construct houses over where they were already in
possession. Such construction shall be subject to final outcome of the
connected second appeal.
9. Accordingly, I.A. stands disposed of.
JUDGE
Comparing Assistant
