Gauhati High Court
Ramen Sarmah vs Shyamal Sarmah on 28 January, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/3
GAHC010080692018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1394/2018
1:RAMEN SARMAH
S/O- LT. GUNADHAR SARMAH, R/O- BORJHAR GAON, P.S.- TEZPUR,
MOUZA- HOLESWAR, DIST.- SONITPUR, ASSAM.
VERSUS
1:SHYAMAL SARMAH
S/O- LT. DULAL SARMAH, R/O- BORJHAR SAIKIA CHUBURI, P.S.- TEZPUR,
MOUZA- HOLESWAR, DIST.- SONITPUR, ASSAM.
Advocate for the Petitioner : MS. B CHOUDHURY
Advocate for the Respondent :
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
28.01.2019 Heard Ms. B Choudhury, learned counsel for the petitioner and Mr. J Deka, learned counsel for the opposite party.
The present opposite party as the plaintiff filed Title Suit No. 104/2006 against the present petitioner as defendant for declaration and mandatory injunction. The plaintiff/opposite party pleaded in his plaint that he entered into an agreement for sale/purchase of a plot of land which is the suit land and subject matter of this injunction application and possession was delivered after receiving a portion out of the total sale consideration money. The sale transaction did not materialise on the ground that the Page No.# 2/3 mutation which was carried out in the Chitha of the name of the plaintiff/opposite party on the strength of the sale and possession was resisted by the mother of the defendant/petitioner. A proceeding under 145 Cr.P.C. was initiated and the land was attached. Thereafter, the suit was filed. The trial court dismissed the suit and an appeal was preferred by the plaintiff/opposite party which was registered as Title Appeal No. 4/2008. The said appeal was allowed reversing the finding of the trial court thereby decreeing the suit vide judgment and decree dated 14.09.2016. Second appeal vide RSA No. 146/2017 was filed by the present defendant/petitioner which was admitted vide order dated 25.05.2017. Having received the notice of the connected second appeal, the plaintiff/opposite party started erecting pillars surrounding the suit land in order to carry out construction. On 27.01.2018, the opposite party entered into the suit land with building materials in order to construct a house thereon. Hence, this application is filed for restraining the plaintiff/opposite party from carrying out construction over the suit land.
Ms. Choudhury submits that the suit property is under attachment and the trial court was dissatisfied with the evidence and other materials on record resulting in the dismissal of the suit. The first appellate court reversed the finding of the trial court whereafter this second appeal was filed and admitted after formulating substantial question of law. In such a situation, the right claimed by the plaintiff/ opposite party has not been affirmed on the basis of which the plaintiff/ opposite party could carry out construction over the suit land. There is strong prima facie case in favour of the petitioner for the aforesaid reasons and the balance of convenience also lies in favour of the petitioner for which the petitioner is entitled to the relief so claimed in this petition.
Mr. Deka, on the other hand, vehemently opposed the submission of the learned counsel for the petitioner. Referring to the objection filed against the petition supported by affidavit he submits that it is an admitted fact that a registered deed of agreement for sale was entered into between the parties to this appeal and under Section 53A of the TP Act the possession of the plaintiff/opposite party is to be protected while passing any order in this application. It is further contended that the allegations of carrying out any construction and dumping of building materials are totally without any basis. In support of the said submission the learned counsel refers to the photograph annexed to the written objection which, as per him, is totally a vacant land with only temporary structures. No building Page No.# 3/3 materials are being stocked over the suit land and the application is filed without any basis nor is it bona-fide. The balance of convenience lies in favour of the plaintiff/ opposite party inasmuch as a decree is still in his favour which is yet to be interfered by this court.
Considered the submission of the learned counsel for the parties. It is not disputed that the subject matter of the connected second appeal is not the suit land rather, both the parties agreed that the suit land referred in this application is the subject matter of the registered deed of agreement for sale on the basis of which the plaintiff/ opposite party initiated the suit. The dismissal of the suit by the trial court cannot be a factor to be considered at this stage to the effect that there is no merit in his case/claim of the plaintiff/opposite party. Similarly, passing of the judgment by the first appellate court also cannot give an advantage to the plaintiff/opposite party to carry out the construction over the suit land changing the nature of the same because of the fact that the connected second appeal arisen out of the judgment and decree passed in the title appeal was admitted by formulating substantial question of law. From the said point of view leaving aside the prima facie case, the balance of convenience lies in favour of the appellant/defendant inasmuch as if the plaintiff/opposite party is allowed to carry out construction then there is every possibility of irreparable loses caused to the petitioner in the event of allowing the second appeal. Upon such consideration, I am of the considered view that at this stage it would be proper to direct the parties to this appeal to maintain status quo both with respect to possession and the nature of the suit land by way of a temporary injunction which I accordingly do.
This petition is accordingly disposed of with the aforesaid direction that both the parties shall maintain status quo with respect to the suit land both with regard to the possession and the nature of the suit land till the disposal of the connected second appeal.
JUDGE Comparing Assistant