Md. Islamuddin Laskar vs Musstt Lutfa Begum Barbhuiya And Anr
2025 Latest Caselaw 5543 Gua

Gauhati High Court

Md. Islamuddin Laskar vs Musstt Lutfa Begum Barbhuiya And Anr on 19 June, 2025

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GAHC010145362024




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

                                Case No. : CRP(IO)/259/2024

            MD. ISLAMUDDIN LASKAR
            SON OF LATE MASKANDAR ALI LASKAR, RESIDENT OF DACKIN
            KRISHNAPUR, P.O. SONABARIGHAT, P.S. SILCHAR, DISTRICT- CACHAR,
            ASSAM, MOBILE NO. 9435371323/9707057915

            VERSUS

            MUSSTT LUTFA BEGUM BARBHUIYA AND ANR
            WIFE OF MD. SIKANDAR ALI BARBHUIYA, RESIDENT OF VILLAGE-
            TULARAM PART-I, P.O. SONAIMUKH, P.S. SONAI, DISTRICT- CACHAR,
            ASSAM, PIN- 788119

            2:MD. SIKANDAR ALI BARBHUIYA
             SON OF LATE SURUJ ALI
             RESIDENT OF VILLAGE- TULARAM PART-I
             P.O. SONAIMUKH
             P.S. SONAI
             DISTRICT- CACHAR
            ASSAM
             PIN- 78811

Advocate for the Petitioner   : MR. D CHAKRABARTY, MS D.CHAKRABARTY

Advocate for the Respondent : MR. S D PURKAYASTHA(R-1), MS S.S.BORA(R-1)


                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

19.06.2025

Heard Mr. D. Chakrabarty, learned counsel for the petitioner and Mr. S.D. Page No.# 2/7

Purkayastha, learned counsel for the respondents.

2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 12.06.2024, passed by the learned Civil Judge (Senior Division) No. 1, Cachar at Silchar (appellate court hereinafter), in Misc. Appeal No. 02/2023.

3. It is to be noted here that vide order dated 12.06.2024, the learned appellate court had allowed the appeal and set aside the order dated 14.12.2022, passed by the learned Munsiff No. 1, Cachar at Silchar (trial court herein after), in Misc. (J) Case No. 179/2022, arising out of Title Suit No. 272/2022.

4. Mr. Chakrabarty, learned counsel for the petitioner submits that the petitioner herein had instituted a title suit, being Title Suit No. 272/2022, claiming right, title and interest over the Schedule-II land, measuring 1 katha

1 chattak, covered by Dag No. 383 of 2 nd R.S. Patta No. 113, under Mazirgram Mouza and confirmation of possession and alternatively, for recovery of khas possession of Schedule-II land by evicting the defendants and dismantling the RCC pillars and other constructions therefrom and for permanent injunction.

4.1. Mr. Chakrabarty, further submits that in the said title suit, the petitioner herein had filed one injunction petition, upon which the Misc. (J) Case No. 179/2022 was registered and thereafter, the learned trial court hearing both the parties, directed them to maintain status quo in respect of the Schedule-II land from causing any change in the nature of the said land by way of any construction work. Being aggrieved, the respondents herein had preferred one title appeal, being Misc. Appeal No. 02/2023, under Order XLIII Rule 1 of the Page No.# 3/7

CPC, wherein the learned appellate court had allowed the same and set aside the impugned order dated 14.12.2022, passed by the learned trial court.

4.2. Mr. Chakrabarty, further submits that this petition is preferred mainly on the following grounds:-

(i) That, the learned appellate court exercised its jurisdiction illegally and with material irregularity in taking the version of the respondents/defendants in their pleadings in regard to their claim of purchase of the suit land with demarcation of the same by boundary pillars without any objection from any corners, etc., in adjudicating the issue of injunction at the appellate stage although such factual matrix are yet to be proved by leading evidence in the suit and thereby, committed jurisdictional error by the learned appellate court;

(ii) That, the learned appellate court did not attach credence to the pleadings of the petitioner in the injunction petition to the extent that the petitioner is the legal owner of the Schedule-II land by virtue of purchase deed No. 214/98, in the year 1998 and has been in possession over the land ever since and despite the admitted position of fact that the respondents had purchased the land claimed by them from their vendors in the year 2017 and the learned appellate court had exercised its jurisdiction illegally and with material irregularity in arriving at the findings that the respondents have been in possession over the suit land since they had purchased and that the grant of injunction over the suit land would cause great loss and injury to the respondents;

(iii) That, the learned appellate court took the version of the respondents in respect of demarcation of their purchased land and construction of Page No.# 4/7

pillars thereupon as gospel truth. But, no reason had been assigned in the impugned judgment and order as to why the version of the petitioner was not taken into consideration though it was categorically pleaded that pillars were constructed during March, 2022, which was stopped thereafter due to intervention of police. But, the respondents attempted to construct pillars on the suit land, though the suit was filed alongwith the injunction petition and as such, the impugned judgment and order of the learned appellate court is perverse and illegal; and

(iv) That, the learned appellate court had failed to point out any arbitrariness, caprices or perversity in the order of status quo passed by the learned trial court, which rightly held that as there is a dispute between the parties as regards Schedule-II land and the petitioner apprehends that the respondents/defendants shall change the nature and feature of the suit land and if the suit property is not preserved and in case, the petitioner failed in establishing his claims made in the suit, it will cause substantial injury to him and the balance of convenience is in favour of him and then, he will suffer irreparable loss and the same would be far greater as compared to the loss that the respondents might suffer. As such, the learned appellate court has acted arbitrarily, capriciously and perversely interfered with the order of status quo passed by the learned trial court.

4.3. Under such circumstances, Mr. Chakrabarty has contended to set aside the impugned order, so passed by the learned appellate court.

5. Per-contra, Mr. Purkayastha, learned counsel for the respondents referring to a decision of Hon'ble Supreme Court in the case of Best Sellers Page No.# 5/7

Retail (India) Private Limited vs. Aditya Birla Nuvo Limited and Others, reported in (2012) 6 SCC 792, submits that the learned trial court though found all the three golden principles in favour of the petitioner, and though the finding of the learned trail court in respect of the existence of prima-facie case may be correct, yet, since the land in question, i.e. Schedule- II land, is in possession of the respondents and this fact stands fortified from the factum of construction of pillars by the respondent herein and that being so the balance of convenience cannot be found in favour of the petitioner and that the irreparable loss which the respondents herein would suffer, would be more than the loss which the petitioner might suffer. And as such, the learned appellate court had rightly interfered with the injunction order so passed by the learned trial court, and the same requires no interference of this Court.

5.1. Mr. Purkayastha also pointed out that some pillars were constructed in the Schedule-II land and the same was constructed three years back and relevant photographs were produced before the learned appellate court and the learned appellate court taking note of the same, arrived at a just finding which requires no interference of this Court.

6. In reply, Mr. Chakrabarty, learned counsel for the petitioner submits that the finding of the learned appellate court is based on the photographs and the same is erroneous and that the respondents herein had allegedly purchased the suit land only in the year 2017, whereas the petitioner had purchased the land in the year 1998 and since then, they are under the possession of the Schedule-II land and therefore, it is contended to allow this petition.

7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on Page No.# 6/7

record and also perused the order dated 14.12.2022, passed by the learned trial court and the impugned judgment and order dated 12.06.2024, passed by the learned appellate court and also gone through the decision in Best Sellers Retail (India) Pvt. Ltd.(supra).

8. It appears that the learned trial court had found all the three golden principles established by the petitioner for grant of temporary injunction and thereafter, directed the parties to maintain status quo, as on that day, in respect of the Schedule-II land. On the other hand, the learned appellate court had found all the three golden principles in favour of the respondents and thereafter, allowed the appeal and set aside the impugned order so passed by the learned trial court.

9. In the case of Best Sellers Retail (India) Pvt. Ltd.(supra), Hon'ble Supreme Court has held that mere satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. It is also held that irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.

10. In the case in hand, from the injunction order passed by the learned trial court reveals that it had found prima-facie case in favour of the petitioner herein. In view of the materials placed on record and also in view of Page No.# 7/7

submissions of learned counsel for both sides, the same appears to be correct.

10.1. But, in respect of the other two requirements, i.e. irreparable injury and balance of convenience, the finding of the learned trial court appears to be erroneous, inasmuch as the land in question is in possession of the respondents. And constructions of pillars by the respondents herein are the testament to such fact. Since the land in question is in possession of the respondents, the finding of balance of convenience in favour of the petitioner by the learned trial court appears to be erroneous and unsustainable in law.

10.2. Since the suit land is in possession of the respondent herein and since the respondent had already started construction then the loss the respondent herein would suffer might be more than what the petitioner would suffer. Mr. Purkayastha, the learned counsel for the respondents has rightly pointed this out during hearing. And there appears to be substance in the same.

10.3. Thus, the learned appellate court had rightly found the balance of convenience and also irreparable loss in favour of the respondents herein and interfered with the order of injunction of the learned trial court.

11. Under such circumstances, this Court finds that the impugned order so passed by the learned appellate court is not arbitrary or illegal and as such, it requires no interference of this Court.

12. Accordingly, this CRP stands dismissed. Interim order passed in I.A.(Civil) No.2220/2024 stands vacated.

JUDGE

Comparing Assistant