Page No.# 1/7 vs Md. Didar Hussain And 2 Ors
2025 Latest Caselaw 3751 Gua

Gauhati High Court

Page No.# 1/7 vs Md. Didar Hussain And 2 Ors on 5 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                         Page No.# 1/7

GAHC010194452024




                                                                  2025:GAU-AS:2373

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

                             Case No. : CRP(IO)/364/2024

           MD. ABDUL AZIZ
           S/O- LATE RAHMAN @ ABDUL RAHMAN, R/O- VILL.- TATIKATA PATHER,
           P.O., P.S. AND MOUZA- MOIRABARI, DIST. MORIGAON, ASSAM



           VERSUS

           MD. DIDAR HUSSAIN AND 2 ORS.
           S/O- LATE HATEM ALI, R/O- VILL.- TATIKATA PATHER, P.O., P.S. AND
           MOUZA- MOIRABARI, DIST. MORIGAON, ASSAM

           2:MUSSTT. RAHIMA KHATUN
            D/O- LATE HATEM ALI
            R/O- VILL.- TATIKATA PATHER
            P.O.
            P.S. AND MOUZA- MOIRABARI
            DIST. MORIGAON
           ASSAM

             3:MUSSTT. RUMENA
              D/O- LATE HATEM ALI
              R/O- VILL.- TATIKATA PATHER
              P.O.
              P.S. AND MOUZA- MOIRABARI
              DIST. MORIGAON
              ASSA
For the Petitioner(s)            : Ms. R. Choudhury, Advocate

For the Respondent(s)           : Mr. L. Mohan, Advocate

Date of Hearing                 : 05.03.2025
Date of Judgment                : 05.03.2025
                                                                         Page No.# 2/7

                                  BEFORE
                   HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the petitioner and Mr. L. Mohan, the learned counsel appearing on behalf of the respondents.

2. The supervisory jurisdiction of this Court has been invoked to assail the order dated 06.07.2024 passed by the learned Civil Judge, (Senior Division), Morigaon (hereinafter referred to as, "the learned First Appellate Court") in Misc. Appeal No.7/2023 whereby the order of injunction dated 13.02.2023 passed by the learned Munsiff No.1, Morigaon (hereinafter referred to as, "the learned Trail Court") in Misc. (J) Case No.104/2022 arising out of Title Suit No.111/2022 was set aside.

3. It is seen from the materials on record that the petitioner herein as plaintiff had instituted a suit being Title Suit No.111/2022 seeking declaration that the plaintiff has right, title and interest over the entire Schedule-A land of the plaint on the basis of purchase vide registered Sale Deed No. 5696 dated 10.08.1984 from the Pattadar Jalaluddin which is one part of the Schedule-B land of the plaintiff; for confirmation of possession of the plaintiff over the Schedule-A land of the plaint and for a decree for permanent injunction for restraining the defendant Nos. 1, 2 & 3 and their heirs, successors, agents, servants or anyone claiming under them from entering into the Schedule-A land of the plaint.

4. It is the case of the plaintiff that the plaintiff peacefully possessed his Page No.# 3/7

share of land of the joint patta since his childhood and also has possessed his purchased land peacefully since 1984 by constructing dwelling houses and digging fishery over his land and by making payment of revenue to the Government. It is the further case of the plaintiff that the plaintiff had already obtained the financial aid of one pucca house from the Central Government and in that regard had purchased sand, bricks, rods, cement etc. for constructing the pucca house over the 4 Kathas of land out of the 5 Bighas of land covered by Dag No.119 of Periodic Patta No.17 of Village Tatikata Pathar, Kissam under Mouza Moirabari in the District of Morigaon. It is the further case of the plaintiff that the principal defendants are not pattadars of the suit land and without having any right, title and interest over the suit land, the said principal defendants Nos. 1, 2, 3 have been threatening the plaintiff to attack since 20.06.2022. It is under such circumstances, the plaintiff filed the said suit seeking the reliefs as above mentioned.

5. Along with the said suit, the plaintiff also filed an injunction application which was registered as M.J Case No.104/2022 seeking an ad-interim temporary injunction restraining the opposite parties/the defendants from entering into the Schedule-A land during the pendency of the suit.

6. The defendant Nos. 1, 2 and 3 filed their written statement as well as written objection wherein they denied the case of the plaintiff. It was mentioned in the written statement that the plaintiff with the assistance of some miscreants illegally and forcefully occupied the share portion of the land of one Late Himu Seikh and therefore one Soyedur Rahman, the grandson of Late Himu Seikh arranged a Raiz Mel and defendants assisted Page No.# 4/7

the said Soyedur Rahman in that Raiz Mel. It was categorically stated that the answering defendants are the grandsons and granddaughters of Late Keramat Ali and they have been possessing the land belonging to their father, namely Hatem Ali.

7. The learned Trial Court vide an order dated 13.02.2023 came to a finding that the plaintiff had the prima facie case and there was also a balance of convenience in favour of the plaintiff as the plaintiff was in possession of the Schedule-A land. It was also observed that if no temporary injunction is allowed that may cause irreparable harm to the plaintiff and it is under such circumstances, the defendants who were the opposite parties in the injunction application were restrained from entering into the Schedule-A land during the pendency of the Title Suit.

8. Being aggrieved by the said order, an appeal was preferred by the defendant Nos. 1, 2 and 3 before the learned First Appellate Court which was registered as Misc. Appeal No. 7/2023. The learned First Appellate Court however interfered with the order dated 13.02.2023 by coming to a finding that though the plaintiff had a prima facie case but aspect pertaining to balance of convenience and irreparable injury was not present. From the findings so arrived at by the learned First Appellate Court, it appears that the learned First Appellate Court was a bit confused on the aspect pertaining to the balance of convenience in as much as the learned First Appellate Court observed that if an injunction is granted, the defendant would suffer equal degree of inconvenience and similarly, if the injunction is not granted, the petitioner would suffer equal degree of inconvenience and on the basis thereof, came to an opinion that the balance of convenience was not in Page No.# 5/7

favour of the petitioner for grant of an injunction. This Court finds it relevant to observe that when the question of balance of convenience is to be adjudged, the Court is required to do so on the basis of the competing claims and in whose favour the claims prima facie tilt for grant of injunction.

9. On the question of irreparable loss or injury, the learned First Appellate Court came to a finding that the plaintiff would not suffer any irreparable loss even if the opposite parties enter into the suit land and dispossess the plaintiff. It was the opinion of the learned First Appellate Court that at best the plaintiff may face some inconvenience. It was further observed that if the opposite parties are proved to be encroacher, then they can always be evicted following due process. On the basis thereof, the learned First Appellate Court set aside the impugned order dated 13.02.2023 passed by the learned Trial Court.

10. This Court having perused the materials and record as well as the impugned orders, is of the opinion that the learned First Appellate Court had erred in law in exercising its jurisdiction. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Wander Ltd. and Another Vs. Antox India P. Ltd. reported in (1990) Supp. SCC

727 wherein the Supreme Court at paragraph No.14 observe the contours of

jurisdiction of an Appellate Court insofar as its power to interfere with the exercise of the discretion of the Court of the first instance. Paragraph No.14 of the said judgment is reproduced herein under:

"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 Page No.# 6/7

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 t he 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'."

The appellate judgment does not seem to defer to this principle."

11. In the backdrop of the above proposition of law so settled, the question arises, as to whether, the learned First Appellate Court was justified in interfering with the order of injunction passed by the learned Trial Court dated 13.02.2023. As already observed, the learned Trial Court in its order dated 13.02.2023 has duly taken note of the facts and arrived at a conclusion that the plaintiff had a prima facie case; the balance of convenience was in favour of grant of an injunction in favour of the plaintiff Page No.# 7/7

and the plaintiff would suffer irreparable loss, harm and injury. The said findings of the learned Trial Court dated 13.02.2023 under no circumstances can be said to be an exercise of jurisdiction, arbitrarily or capriciously or perversely or ignoring the settled principles of law regulating grant or refusal of interlocutory injunctions. Rather, the judgment of the learned First Appellate Court in respect to the principles of balance of convenience and irreparable loss, harm and injury shocks this Court.

12. The learned First Appellate Court completely lost sight of the fact that if the injunction is not granted, the plaintiff would be dispossessed which would lead to multiplicity of proceedings apart from the harm which the plaintiff would have to endure. This Court further finds it relevant to observe that it is a settled principle of law that the purpose of a temporary injunction is to maintain the status quo. [see Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Others reported in (1993) 3 SCC 161].

13. Considering the above, this Court sets aside the order dated 06.07.2024 passed in Misc. Appeal No.7/2023 and restores the order dated 13.02.2023 passed by the learned Trial Court in Misc. (J) Case No.104/2022. In other words, this Court directs that both the parties in the suit shall maintain status quo in respect to the possession of the suit property till the disposal of the suit.

14. With the above observations and directions, the instant petition stands disposed of.

JUDGE

Comparing Assistant