Page No.# 1/9 vs Sabed Ali @ Sabedulla And 8 Ors
2025 Latest Caselaw 4621 Gua

Gauhati High Court

Page No.# 1/9 vs Sabed Ali @ Sabedulla And 8 Ors on 18 August, 2025

                                                                  Page No.# 1/9

GAHC010191842023




                                                           2025:GAU-AS:10921

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

                        Case No. : I.A.(Civil)/2546/2023

         SAMAR ALI AND 2 ORS.
         S/O LATE ABDUL GAFUR
         RESIDENT OF VILLAGE AMINPARA, MOUZA BARSILAJHAR, PO
         AMINPARA, PS ROWTA, DIST UDALGURI, BTAD. ASSAM, 784508

         2: SAMALA BEWA
         W/O LATE ABDUL GAFUR
         RESIDENT OF VILLAGE AMINPARA
          MOUZA BARSILAJHAR
          PO AMINPARA
          PS ROWTA
          DIST UDALGURI
          BTAD. ASSAM
          784508

         3: CHAND BHANU
          D/O LATE ABDUL GAFUR
         RESIDENT OF VILLAGE AMINPARA
          MOUZA BARSILAJHAR
          PO AMINPARA
          PS ROWTA
          DIST UDALGURI
          BTAD. ASSAM
          78450

         VERSUS

         SABED ALI @ SABEDULLA AND 8 ORS.
         S/O LATE USAN ALI RESIDENT OF VILLAGE AMINPARA, MOUZA
         BARSILAJHAR, PO AMINPARA, PS ROWTA, DIST UDALGURI, BTAD.
         ASSAM, 784508

         2:FAYEZ ALI
          S/O LATE SABED ALI @ SABEDULLA
                                Page No.# 2/9

RESIDENT OF VILLAGE AMINPARA
MOUZA BARSILAJHAR
PO AMINPARA
PS ROWTA
DIST UDALGURI
BTAD. ASSAM
784508

3:NUR MOHAMMAD
 S/O SABED ALI @ SABEDULLA

RESIDENT OF VILLAGE AMINPARA
MOUZA BARSILAJHAR
PO AMINPARA
PS ROWTA
DIST UDALGURI
BTAD. ASSAM
784508

4:ZAKIR HUSSAIN
 S/O FAYEZ ALI
RESIDENT OF VILLAGE AMINPARA
 MOUZA BARSILAJHAR
 PO AMINPARA
 PS ROWTA
 DIST UDALGURI
 BTAD. ASSAM
 784508

5:SADDAM HUSSAIN @ DULU
 S/O FAYEZ ALI
RESIDENT OF VILLAGE AMINPARA
 MOUZA BARSILAJHAR
 PO AMINPARA
 PS ROWTA
 DIST UDALGURI
 BTAD. ASSAM
 784508

6:MAJIBAR RAHMAN
 S/O NUR MOHAMMAD
RESIDENT OF VILLAGE AMINPARA
 MOUZA BARSILAJHAR
 PO AMINPARA
 PS ROWTA
 DIST UDALGURI
 BTAD. ASSAM
 784508
                                                                        Page No.# 3/9


            7:SURMAN ALI @ SULEMAN ALI
             S/O NUR MOHAMMAD
            RESIDENT OF VILLAGE AMINPARA
             MOUZA BARSILAJHAR
             PO AMINPARA
             PS ROWTA
             DIST UDALGURI
             BTAD. ASSAM
             784508

            8:AMZAD ALI
             S/O NUR MOHAMMAD
            RESIDENT OF VILLAGE AMINPARA
             MOUZA BARSILAJHAR
             PO AMINPARA
             PS ROWTA
             DIST UDALGURI
             BTAD. ASSAM
             784508

            9:SAHED ALI
             S/O LATE BOGA SEIKH
            RESIDENT OF VILLAGE AMINPARA
             MOUZA BARSILAJHAR
             PO AMINPARA
             PS ROWTA
             DIST UDALGURI
             BTAD. ASSAM
             78450

Advocate for the Petitioner   : S BORGOHAIN, MS. B DEVI,MR. N SARKAR

Advocate for the Respondent : MR. A R SHOME,




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

Date : 18.08.2025

Heard Mr. A. Biswas, learned counsel for the applicants. Also heard Mr. S. Chauhan, learned counsel for the opposite parties.

Page No.# 4/9

2. This interlocutory application, under Order 39 Rule 2A, r/w Section 151 of the CPC, is preferred by the applicants for wilful violation and/or disobedience of the order dated 09.06.2023, passed by this Court in I.A. (Civil) No. 1095/2023, arising out of RSA 58/2022, and to punish the opposite parties for violation of the said order.

3. Mr. Biswas, learned counsel for the applicants submits that the applicants are the respondents in RSA No. 58/2022, and in the aforementioned RSA, one interlocutory application, being I.A. (Civil) No. 1095/2023, was filed alleging that the opposite parties were trying to change the nature and character of the suit land, upon which this Court, vide order dated 09.06.2023, had directed the parties not to change the nature and character of the suit land till disposal of the appeal. Mr. Biswas also submits that while the aforementioned order was in force, the opposite parties had started construction work over the suit land and in support of his submission, Mr. Biswas has produced several photographs of the suit land. Mr. Biswas further submits that while admitting this interlocutory application, this Court vide order dated 12.01.2024, had directed the learned Trial Court to record evidence and after recording evidence, the learned Trial Court had submitted a report and the said report indicates that there is violation of the order dated 09.06.2023, and that the applicants herein led evidence and proved photographs and examined three witnesses i.e. P.W.1, P.W.2 and P.W.3, and their evidence remained un-rebutted in cross-examination, and not a single question was put to them in respect of the violation, and that the opposite parties had never entered into the witness box, for which adverse inference can be done.

3.1. Referring to a decision of Punjab & Haryana High Court in the case of Avtar Singh vs. BalKar Singh, reported in 2002 0 Supreme (P&H) 907 Page No.# 5/9

and another decision of High Court of Uttar Pradesh in the case of Savitri Devi vs. Civil Judge (Senior Division), Gorakhpur, reported in 2003 0 Supreme (All) 662, Mr Biswas submits that the proceedings under Order 39 Rule 2A are quasi-criminal in nature, and under such circumstances, Mr. Biswas has contended to impose punishment upon the opposite parties.

3.2. Mr. Biswas further submits that though the opposite parties have taken a stand that they were not communicated by the counsel about the order being passed by this Court, but the same was within the knowledge of their counsel and knowledge to their counsel is knowledge to the party, and under such circumstances Mr. Biswas has contended to allow this application.

4. Per contra, Mr. Chauhan, learned counsel for the opposite parties submits that the opposite parties have not violated the order of this Court and what this Court directed was not to change the nature and character of the suit land, and that the opposite parties have not changed the nature and character of the suit land, they only cultivated the same and this cultivation does not amount to changing of nature and character of the suit land. Mr. Chauhan also submits that there is no violation of the order of this Court, rather the order is violated by the applicants and under such circumstances, Mr. Chauhan has contended to dismiss this application.

5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the application and the documents placed on record, and also perused the order dated 09.06.2023, passed by this Court, in I.A. (Civil) No. 1095/2023.

6. For better appreciation of the submissions advanced at the Bar, this Court deems it necessary to reproduce the order, dated 09.06.2023, herein :-

Page No.# 6/9

ORDER 09.06.2023:-

Heard Mr. N. Sarkar, the learned counsel appearing for applicants. Also heard Mr. A.R. Shome, learned counsel representing Opposite party/appellant. On 25.05.2022, this Court while admitting the Regular Second Appeal, directed that the decree passed in Title Appeal No.01/201 affirming the judgment and decree dated 10.04.2019 passed by learned Civil Judge, Udalguri in Title Suit No.03/2014, shall remain stayed till disposal of the appeal.

Today, Mr. Sarkar submits that taking advantage of the aforesaid order, the appellant/opposite party has been trying to change the nature and character of the suit land.

I have also heard Mr. Shome to that effect. After hearing both sides, this Court is of the opinion that till disposal of the appeal, the nature and character of the suit land shall not be changed by any of the party.

                 With the        aforesaid     direction,   the   I.A.   stands
              disposed of.



                                                                Sd/.
                                                            J U D G E

6.1. Thus, from the order dated 09.06.2023, it becomes apparent that what this Court had directed was not to change the nature and character of the suit land, by any of the parties, till disposal of the appeal.

Page No.# 7/9

6.2. But, a careful perusal of the interlocutory application, it reveals that the applicant had only mentioned therein that the opposite parties have been continuously carrying out numerous activities over the suit land and changing the nature and character of the suit land. There is no description of the activities being carried out by the opposite parties therein. The applicant, however, enclosed one copy of Ejahar and some photograph as Annexure-B and C.

6.3. A careful perusal of the Ejahar -Annexure-B, dated 14.06.2023, reveals that the allegation made therein is that the opposite parties have hampered and tampered with the suit land by giving lease or cultivating on the suit land. Further, from the photographs submitted by the applicant indicates cultivation over the land but it could not be ascertained whether it was the suit land or some other land.

7. On the other hand, the opposite parties had filed its affidavit and wherein it had taken a stand that the allegations leveled are false and that they are in possession of the suit land and cultivating different kind of vegetables and by selling the said vegetables they have been maintaining themselves and their families, and by such cultivation the nature and character of suit land was never changed and the allegations are misconceived.

8. Also I have gone through the evidence of P.W.1, P.W.2 and P.W.3, so examined by the learned Trial Court, as per the direction of this Court vide order dated 12.01.2024.

9. But, in the given conspectus of facts and circumstances, and also taking note of the submission of learned counsel for both the parties, this Court is unable to derive satisfaction that the opposite parties have changed the nature and character of the suit land by merely cultivating the same.

Page No.# 8/9

10. It is not in dispute that the proceedings under Order 39 Rule 2A CPC are quasi-criminal in nature, and as such, the degree of proof is higher than the ordinary civil proceeding. Reference in this regard may be made to a decision of Hon'ble Supreme Court in the case of Food Corpn. of India v. Sukh Deo Prasad, (2009) 5 SCC 665

"38. The power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the "order", on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility."

11. In the instant case, the opposite parties are in possession of the suit land and they are cultivating different kind of vegetables and by selling the said vegetables they have been maintaining themselves and their families. And by such cultivation of vegetables, it can hardly be accepted that the nature and character of suit land was changed.

12. It is, however, a fact that the opposite parties had entered into witness box to substantiate its defence. But, that does not relieve the applicants from establishing their allegation on the scale of beyond all reasonable doubt.

Page No.# 9/9

13. Thus, considering the entire gamut of facts and circumstances, so canvassed before this Court, in the light of the decision above, this Court is of the view that the applicants herein have failed to substantiate the allegation of changing the nature and character of the suit land, and as such, this Court is inclined to close this application.

JUDGE

Comparing Assistant