Gauhati High Court
Kiranmoyee Choudhury @ Dutta vs Rita Baishya Talukdar And Anr on 19 December, 2025
Page No.# 1/11
GAHC010015922021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/10/2021
KIRANMOYEE CHOUDHURY @ DUTTA
D/O. KARUNA NARAYAN CHOUDHURY, R/O. VILL. BIDYAPUR, NALBARI
TOWN, DIST. NALBARI, ASSAM, PIN-781335.
VERSUS
RITA BAISHYA TALUKDAR AND ANR
W/O. SHRI NARASH TALUKDAR, VILL. BIDYAPUR, NALBARI TOWN, DIST.
NALBARI, ASSAM, PIN-782335.
2:MD. OII ALI @ OLIUR RAHMAN
W/O. RAUSAN ALI
VILL. ISLAM CHUPA
NALBARI TOWN
DIST. NALBARI
ASSAM
PIN-782335
Advocate for the Petitioner : MR. R J BORDOLOI, MR. R ALI
Advocate for the Respondent : MR S DIFUSA, MR D CHOUDHURY
Linked Case : CRP/65/2020
KIRANMOYEE CHOUDHURY @ DUTTA
W/O KARUNA NARAYAN CHOUDHURY
R/O VILL. BIDYAPUR
NALBARI TOWN
DIST. NALBARI
ASSAM
Page No.# 2/11
VERSUS
RITA BAISHYA TALUKDAR AND ANR.
W/O SHRI NARASH TALUKDAR
R/O VILL. BIDYAPUR
NALBARI TOWN
DIST. NALBARI
ASSAM
2:MD. OLI ALI @ OLIUR RAHMAN
W/O RAUSAN ALI
R/O VILL. ISLAM CHUPA
NALBARI TOWN
DIST NALBARI
ASSAM
------------
Advocate for : MR. R J BORDOLOI
Advocate for : MR D CHOUDHURY appearing for RITA BAISHYA TALUKDAR
AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 19.12.2025
1. Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. S. Difusa, learned counsel for the respondent No. 1.
2. None has appeared for respondent No. 2.
3. By this common order, this Court proposes to dispose of Civil Revision Petition No. 10/2021 as well as Civil Revision Petition No. 65/2020 as both these cases arose out of Order dated 26.06.2018 passed by the Court of learned Civil Judge, Nalbari in Misc.(J) Case No. 4/2018 arising out of Title Suit No. 1 of 2018.
4. The Civil Revision Petition No. 65/2020 has been filed by the petitioner Page No.# 3/11 on being aggrieved by the Judgment and Order dated 17.02.2020 passed by the Court of the learned District Judge, Nalbari in Misc. Appeal No. 4/2018 which was filed by the present petitioner impugning the Order dated 26.06.2018 passed by the learned Civil Judge, Nalbari in Misc.(J) Case No. 4/2018. Whereas, the Civil Revision Petition No. 10/2021 has been filed by the present petitioner impugning the Order dated 07.12.2020 passed in Misc. Appeal No. 5/2018 wherein the respondent No. 2 had challenged the Order dated 26.06.2018 passed in Misc.(J) Case No. 4/2018 in connection with Title Suit No. 1/2018. Though, the aforesaid Civil revision petitions are directed against the Orders of the First Appellate Court passed in two different Misc. Appeal cases, namely, Misc. Appeal No. 4/2018 and Misc. Appeal No. 5/2018, however, as both the misc. Appeals were registered and were directed against a common order passed by the Court of learned Civil Judge, Nalbari in Misc.(J) Case No. 4/2018 arising out of Title Suit No. 1/2018 on 26.06.2018. Hence, both these civil revision petitions are dealt with together by this common order.
5. The facts relevant for consideration of the above mentioned Civil Revision Petitions, in brief, are that the present respondent No. 1, as plaintiff, has instituted a Title Suit No. 1/2018 before the Court of learned Civil Judge, Nalbari seeking declaration of her right, title and interest and recovery of khas possession as well as for permanent injunction over Schedule A Land measuring 1 Katha 10 Lechas covered by Dag No. 175 of NK Patta No. 18 in Ward No. 7 of Nalbari town. It has been pleaded in the plaint of the plaintiff (respondent No.1) herein that the aforesaid plot of land was purchased by her from the present petitioner by executing a registered sale deed No. 2482/2010 and thereafter the delivery of possession of the said land was also made in favour of the respondent No. 1. The present petitioner does not have any dispute regarding Page No.# 4/11 the sale of the land in favour of respondent No. 1. The title suit was filed by the respondent No. 1 mainly against the present respondent No. 2 alleging trespass into the Schedule-A land on 28.01.2013 by the said respondent No.2 claiming that the said land falls within the Dag No. 173 and not under Dag No. 175. In Title Suit No. 1/2018, the present respondent No. 1 as plaintiff had also filed an injunction application under Order 39, Rules 1 and 2, read with Section 151 of the Code of Civil Procedure. The said injunction application was registered as Misc.(J) Case No. 4/2018.
6. In the said application, temporary injunction was sought for in respect of Schedule-A land as well as in respect of Schedule-B land. It is an undisputed fact that the Schedule-B land belongs to the present petitioner. However, the respondent No. 1, as plaintiff, took a plea in her plaint that in the event, the defence taken by the present respondent No. 2 in the aforesaid suit that the land which is shown as Schedule-A land in the plaint is found to be covered by the Dag No. 173 and not 175, in that case, an alternative relief was prayed for by the plaintiff. The alternative relief prayed for in the plaint is that, in the aforesaid contingency, the Schedule-B property be made the subject matter of the sale deed between the present petitioner and respondent No. 1 by modifying the Dag number and Patta number of the land in the sale deed which was executed by in between respondent No. 1 and the present petitioner.The Trial Court by order dated 26.06.2018 passed in Misc.(J) Case No. 4/2018 granted injunction in respect of both the properties, namely, Schedule-A property as well as Schedule-B property. Subsequently, being aggrieved by the aforesaid order, the petitioner preferred a Misc. Appeal i.e., Misc. Appeal No. 4/2018 before the learned District Judge, Nalbari. The present respondent No. 2 had also preferred an appeal before the District Judge, Nalbari against the said Page No.# 5/11 order and said Misc. Appeal was registered as Misc. Appeal Case No. 5/2018.
7. The Court of learned District Judge, Nalbari by order dated 17.02.2020 passed in Misc.(J) Case No. 4/2018 upheld the order of the Trial Court directing the parties to maintain status quo in respect of both the Schedule-A as well as Schedule-B land till the disposal of the Title Suit No. 1/2018. The parties were restrained from alienating/transferring the suit land till the disposal of the main suit. However, later on by order dated 7.12.2020 passed in Misc. Appeal No. 5/2018, the Court of learned District Judge, Nalbari had suo moto modified the order passed in Misc. Appeal No. 4/2018 and altered the injunction and modified the order dated 26.06.2018 passed in Misc.(J) Case No. 4/2018 by the Court of learned Civil Judge by limiting the injunction order passed by the Trial Court only in respect of Schedule-B land and the Schedule-A land was released from the status quo order.
8. Mr. R. Ali, learned counsel for the petitioner has submitted that both the impugned orders suffer from patent illegality, material irregularity and jurisdictional excess. He submits that in Misc. Appeal No. 5/2018, the First Appellate Court exceeded its jurisdiction by suo moto reviewing the final order passed in Misc. Appeal No. 4/2018.He further submits that the First Appellate Court also came to a final conclusion regarding merit of the main suit (Title Suit No. 1/2018) in an interlocutory proceeding in as much as it held that the schedule-A land is not covered under Dag No. 175 as claimed by the plaintiff (respondent No. 1). He submits that the schedule-B land measuring 4 Katha under Dag No. 175 is situated four plots away from the schedule-A land and same was not the subject matter of the sale deed executed by the present petitioner in favor of the respondent No. 1, therefore, said property cannot be Page No.# 6/11 subject matter of the suit. More so, when the main relief claimed by respondent No. 1 (as plaintiff) in the Title Suit No. 1 of 2018 is in respect of schedule-A land.
9. He submits that the relief claimed in respect of schedule-B land is a speculative and a conditional relief without any basis for the same as no agreement was entered into between the parties in respect of schedule-B land. He further submits that though the respondent No. 1, as plaintiff, in Title Suit No. 1/18 has claimed the right, title and interest over schedule-A land no such right, title and interest has been claimed over schedule-B land, therefore, the schedule-B land of which the ownership of the present petitioner is undisputed, same cannot be made the subject matter of the injunction order by the Trial Court as well as by the First Appellate Court. He further submits that the First Appellate Court also erred in law as well as in facts by suo moto reviewing its order passed in Misc. Appeal No. 4/2018 by the impugned order dated 07.12.2020 passed in Misc. Appeal No. 5/2018.
10. The learned counsel for the petitioner further submits that by mere seeking an alternative relief in respect of schedule B landover which no legal right has been shown by the respondent No. 1, same cannot be made the subject matter of grant of temporary injunction by the Trial Court as well as by the First Appellate Court. He submits that both the courts below erred in not considering that there was no prima facie case or balance of convenience in favour of the respondent No. 1 with regard to the schedule-B land though same might have been there with regard to schedule-A land.
11. The learned counsel for the petitioner has further submitted that as the ownership of the present petitioner over Schedule-B land is undisputed, the Page No.# 7/11 settled proposition of law that an admitted owner cannot be injuncted without applicant's demonstrable legal rights and imminent threat is applicable to this case and no injunction can be granted in respect of Schedule-B land. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of "Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs. & Ors.", reported in "(2008) 4 SCC 594.
12. The learned counsel for the petitioner has also cited following rulings in support of his submissions:-
(i) "Wander Ltd. & Another Vs. Antox India P. Ltd." reported in 1990 Suppl. (1) SCC 727",
(ii) Dalpat Kumar and Anr. Vs.Prahlad Singh and Ors." reported in "(1992)1SCC719",
(iii) "M/S Gujarat Bottling Co. Ltd. & Ors Vs.The Coca Cola Co. & Ors" reported in "1995 SCC (5) 545",
(iv) "Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors" reported in "1990 (2) SCC 117".
13. On the other hand, learned counsel for respondent No. 1 has submitted that prior to filing of the Title Suit No. 1/2018, the present respondent No.1 had filed another title suit bearing Title Suit No. 57/2015 against the present respondent No.2 and in that suit, the respondent No.2 took the stand that the Schedule A land falls within dag No. 173 of NK Patta No. 64 and same was confirmed by the commission appointed by the Court in that case. He submits that thereafter, the said suit (Title Suit No. 57/2015) was withdrawn by the respondent No. 2 with liberty to file afresh on some technical counts. Thereafter Page No.# 8/11 the present suit, i.e., Title Suit No. 1/2018 has been filed by the respondent No. 1 seeking alternative relief in respect of Schedule-B land, in addition to main relief of declaration of right, title and interest and recovery of khas possession of land covered under Schedule-A of the plaint. He submits that the trial court was correct in issuing status quo order in respect of both the lands (Schedule-A as well as Schedule-B land) as it would prevent multiplicity of suits and was in conformity with the principle of lis pendens as contained in Section 52 of the Transfer of Property Act, 1882. He submits that the modification of the injunction order given by the First Appellate Court inasmuch as it restricted the injunction order in respect of Schedule-B property only was not correct and as such he submits that the status quo order in respect of both the properties should be restored.
14. The learned counsel for the respondent further submits that the present civil revision petitions under Article 227 of the Constitution of India are not maintainable inasmuch as the powers under Article 227 of the Constitution of India has to be exercised sparingly and only in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. In support of his submission, he has cited a ruling of the Apex Court in the case of "Waryam Singh and another Vs. Amarnath and Another " reported in "AIR 1954 SC 215".
15. I have considered the submissions made by learned counsel for both sides. I have also gone through the materials available on record. I have also considered and gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.
16. In the instant case, the respondent No. 1 as plaintiff has sought for relief Page No.# 9/11 of declaration of right, title and interest, as well as recovery of khas possession and permanent injunction mainly in respect of schedule-A land in the plaint. The alternative relief in respect of schedule-B land has been prayed for only in the event if during trial it is found that the schedule-A land is actually covered by Dag No. 173 of NK Patta No. 64 and not under Dag No. 175 of Patta No. 18. However, no relief of declaration of right, title and interest in respect of schedule B land has been prayed for by the respondent No. 1 in his plaint. The ownership of the petitioner over schedule-B land is not disputed by any of the parties. Moreover, the sale deed executed between the petitioner and the respondent No. 1 was in respect of scheduled-A land covered by Dag No. 175 of NK Patta No. 18 and from the averments made in the plaint, it appears that the possession of the said land was also handed over to the respondent No. 1 by the present petitioner.
17. This Court is of considered opinion that merely because an alternative relief is prayed for in respect of the schedule-B property by the respondent No. 1 in his plaint, the actual owner of the schedule-B land, i.e., the present petitioner, cannot be injuncted without the respondent No. 1 able to show any demonstrable legal right over the said plot of land.
18. For grant of temporary injunction in respect of schedule-B land, it was incumbent upon respondent No. 1 (plaintiff) to show some basis to demonstrate her legal rights over the said plot of land. However, the respondent No. 1 has miserably failed to demonstrate any legal rights over schedule-B land. The relief claimed by the respondent No. 1 in respect of schedule-B property is, therefore, speculative and conditional upon not getting any relief in respect of the schedule-A, without there being any demonstrable legal basis for claiming right Page No.# 10/11 over schedule-B land.
19. Moreover, the First Appellate Court while disposing of the Misc. Appeal No. 5/2018 by order dated 07.12.2020 has also erred in finally holding in an interlocutory proceeding that the respondent No. 2 has to compensate the plaintiff from her own share of property and that the schedule A land is not covered under DagNo. 175 of KP Patta No. 18 without there being any such evidence to that effect on record in the Title Suit No. 1/2018. Further, the First Appellate Court also erred in suo moto reviewing the order dated 17.02.2020 passed in Misc. Appeal No. 4/2018 in a proceeding under Order 43 Rule 1(r)of the Code of Civil Procedure, 1908 in Misc. Appeal No. 5/2018. The Court of learned District Judge, Nalbari has mixed up or overlapped one jurisdiction with another jurisdiction. The First Appellate Court, in the considered opinion of this Court, has erred in reviewing the order dated 17.02.2020, passed in Misc. Appeal No. 4/2018 by its order dated 07.12.2020, passed in Misc. Appeal No. 5/2018 in exercise of its powers under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908.
20. Since, the First Appellate Court has committed a jurisdictional error by reviewing its order in an appellate proceeding and since injunction has been granted in respect of schedule-B property over which no demonstrable legal rights could be shown by the respondent No. 1, this Court is of considered opinion that this is a fit case where the supervisory powers of this Court under Article 227 of the Constitution of India may be invoked and the impugned orders are interfered with.
21. Accordingly, the impugned orders are set aside to the extent it has granted temporary injunction in respect of the Schedule-B land. The status quo Page No.# 11/11 order granted by the Trial Court in respect of Schedule-A land shall, however, remain as it is till the disposal of Title Suit No. 1/2018.
22. For the reasons mentioned in the foregoing paragraphs and discussions made therein, the above mentioned civil revision petitions are disposed of in the manner as indicated in the foregoing paragraphs.
23. No orders as to cost.
JUDGE Comparing Assistant