Gauhati High Court
Kanhaya Prasad vs Subash Prasad And Anr on 28 May, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/4
GAHC010092212019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 58/2019
1:KANHAYA PRASAD
S/O. LT. RAMKRIPAL KANU, PERMANENT RESIDENT OF SONARI PATTI,
NETAJU ROAD, DOOMDOOMA, P.O. AND P.S. DOOMDOOMA, DIST.
TINSUKIA, PRESENTLY RESIDING AT AZAD ROAD, DOOMDOOMA, P.O.
AND P.S. DOOMDOOMA, PIN- 786151, DIST. TINSUKIA, ASSAM.
VERSUS
1:SUBASH PRASAD AND ANR.
S/O LT. BHOLA PRASAD KANU, R/O. AZAD ROAD, DOOMDOOMA TOWN,
P.O. AND P.S. DOOMDOOMA, DIST.- TINSUKIA, ASSAM. PIN- 786151.
2:GANESH PRASAD
S/O LT. KUBER PRASAD
R/O. AZAD ROAD
DOOMDOOMA TOWN
P.O. AND P.S. DOOMDOOMA
DIST. TINSUKIA ASSAM
PIN-786151
Advocate for the Petitioner : MR. B. DUTTA
Advocate for the Respondent : MR. S S ROY
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 28-05-2019 Heard Mr. B. Dutta, learned counsel for the petitioner. I have also heard Mr. G.P. Bhowmik, learned Sr. counsel assisted by Mr. S.S. Roy, learned counsel for the Page No.# 2/4 respondents.
2. This revision petition is directed against the order dated 03-04-2019 passed by the learned District Judge, Tinsukia in Misc. Appeal No. 11/2019 allowing the appeal filed by the respondents by granting an order of temporary injunction restraining the petitioner/ defendant from carrying out any construction work over the suit land.
3. By referring to the impugned order, Mr. Dutta submits that his client is occupying a part of the ancestral land which was amicably partitioned between the legal heirs including the plaintiffs. Pursuant to such partition, the revenue records were also corrected and the names of the parties have been included in the jamabandi. According to Mr. Dutta, his client is in possession of the land covered by Dag Nos. 1807, 1808 and 1809 whereas the respondents are in possession of the land covered by Dag Nos. 1782 and 1783. Mr. Dutta submits that his client is carrying out construction over the plot of land that has fallen in his share pursuant to the amicable partition and, therefore, there is no justifiable ground for the respondents/ plaintiffs to object to the construction carried out by his clients.
4. Responding to the above argument, Mr. Bhowmik, learned Sr. counsel for the respondents submits that the petitioner is carrying out construction over the land falling in the share of his clients which is covered by Dag No. 1782 and 1783 and that is the reason the plaintiffs had to institute the suit alleging illegal dispossession. The learned Sr. counsel has, however, fairly submits that his clients do not have any claim over the land covered by Dag Nos. 1807, 1808 and 1809 of Patta No. 158(old)/ 364(new) of Doomdoma Town under Doomdoma Mouza in the district of Tinsukia. Mr. Bhowmik has also clarified that Page No.# 3/4 the land claimed by his clients, i.e. the plaintiffs in this suit, is covered by Dag Nos. 1782 and 1783 of Patta No. 158(old)/ 350(new) of Doomdoma Town under Doomdoma Mouza in the district of Tinsukia.
5. After hearing the learned counsel for the parties, this Court is of the view that the crux of the problem lies in proper identification of the land over which the petitioner is seeking to raise permanent construction. The learned counsel for the parties have also fairly conceded that their clients would not have any grievance if the construction work is permitted over the land falling in their respective shares.
6. Having heard the rival contentions, I am of the view that the dispute raised in this appeal can be resolved by issuing an Amin Commission so as to identify the land and submit a report.
7. In view of the above and as agreed to by the learned counsel for both the parties, this revision petition is being disposed of by granting 07 days time to the petitioner to make an application under Order XXVI Rule 9 CPC before the learned Trial Court for issuance of an Amin Commission so as to identify the disputed land and submit a report.
8. If such an application is filed within 07 days, the learned Trial Court may pass appropriate order therein addressing the grievance of the petitioner.
9. Upon receipt of the report of the Amin Commission, both the parties be granted opportunity to make their representation for and against the report.
10. On conclusion of the above process and depending on the outcome of the survey conducted by the Commissioner, it would be open for the petitioner to seek modification Page No.# 4/4 of the order of temporary injunction.
11. Considering the urgency expressed in the matter, the learned Trial Court is requested to conclude the process within 02 months from the date of filing of the application under Order XXVI Rule 9 CPC.
It is, however, made clear that the Amin Commission shall be appointed only for identification of the land over which the construction is being carried out by the petitioner and the result thereof shall be used for the limited purpose of considering the prayer for temporary injunction.
Until such time the exercise is completed, parties to maintain status quo over the suit land.
The impugned order dated 03-04-2019 stands modified to the above extent. With the above observation, this revision petition stands disposed of. No order as to cost.
JUDGE GS Comparing Assistant