Gauhati High Court
Shri Dilip Kumar Deka vs Shri Tutu Kumar Sarmah on 13 May, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/4
GAHC010265422018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : FAO 57/2018
1:SHRI DILIP KUMAR DEKA
S/O LATE ADITYA KUMAR DEKA
R/O VILL. HATIGAON
BHETAPARA ROAD
KAILASH NAGAR
DOLDEN PATH NO. 2 HOUSE NO. 21
NEAR KAILASH NAGAR SHIVA MANDIR
P.S. BASISTHA
GUWAHATI 781028 IN THE DIST. OF KAMRUP (M)
ASSAM.
VERSUS
1:SHRI TUTU KUMAR SARMAH
S/O SHRI KRISHNA KANTA SARMAH
R/O NORBAM
BORSAJAI
HOSE NO. 10
MOHANAGAR PATH
LALMATI
BORSOJAI
P.O. AND P.S. BASISTHA IN THE DIST. OF KAMRUP (M)
ASSAM.
Advocate for the Petitioner : MR. M TALUKDAR
Advocate for the Respondent : MR S DEKA
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BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 13-05-2019 Heard Mr. M. Talukdar, learned counsel for the appellant. I have also heard Mr. S. Deka, learned counsel representing the sole respondent.
This appeal is directed against the order dated 27/08/2018 passed by the learned Civil Judge No.1, Kamrup (M) at Guwahati in Misc. (J) Case No. 290/2018, arising out of Title Suit No. 162/2018, rejecting the prayer made by the appellant for issuance of an order of temporary injunction restraining the respondent from entering into the suit land or disturbing the peaceful possession of the appellant over the said plot of land.
The appellant, who is the plaintiff in T.S. No. 162/2018, claims to have purchased the suit land i.e. a plot of land measuring 2 Kathas by means of a Registered Deed of Sale dated 01/07/1982 from its registered owner Shri Aditya Narayan Gogoi for valuable consideration. As per the schedule of the Sale Deed dated 01/07/1982, the land purchased by the appellant is covered by Dag No. 584 (old)/2931 (new) of K.P. Patta No. 164 (old)/1893(new) of Beltola Mouza of Borsojai village. The appellant claims that the respondent has forcibly dispossessed him from a part of the suit land. Notwithstanding the same and despite the threat of further dispossession, by the impugned order dated 27/08/2018, the learned Civil Judge has rejected the prayer for temporary injunction in a most illegal manner, as a result of which, the interest of the appellant/plaintiff has suffered serious prejudice.
Contending that his client has been in continuous possession in respect of the suit land measuring 2 Kathas for more than 36 years, Mr. Talukdar has prayed for an order of temporary injunction from this Court, protecting the possession of his client over the suit land.
The submissions of the appellant's counsel has been strongly refuted by Mr. S. Deka, learned counsel for the respondent by contending that the land purchased by the appellant on the strength of the Page No.# 3/4 Registered Sale Deed dated 01/07/1982 is under the occupation of Shri Atul Deka i.e. the proforma defendant no. 8 in Title Suit No. 162/2018 but since the said person is a close relative of the plaintiff, hence, instead of proceeding against the proforma defendant no.8 and seeking his eviction from the suit land, the plaintiff has instituted the suit against the respondent/defendant no.1, who is occupying an entirely different plot of land covered by Dag No. 452 (old)/2929 and 2930 (new) of Khiraj Ekshona Patta No. 3 (old) /5(new), which plot of land is contiguous to the suit land. On such basis, Mr. Deka submits that the appellant cannot claim any relief against the respondent since the land under his occupation is different from the plot of land purchased by the appellant/plaintiff by the sale deed dated 01/07/1982.
After hearing the arguments advanced by learned counsel for both the parties, it clearly transpires that there is real controversy in this case about the true identity of the land under the possession of the respondent/defendant no.1 and that claimed by the plaintiff/appellant. Unless the aforesaid factual controversy is satisfactorily resolved, no further order can be passed in the present proceeding.
In view of the above and for securing the ends of justice, I deem it appropriate to invoke the jurisdiction of this Court under Order 26 Rule 10 CPC and appoint an Advocate Commissioner so as to visit the site and submit a report.
Accordingly, Mr. Sheeladitya, an Advocate of this Court is hereby appointed as the Advocate Commissioner.
The appointed Commissioner shall examine the relevant records and carry out physical verification of the disputed land so as to ascertain as to who is in possession of the suit land and since when.
The concerned Circle Officer to depute competent staff so as to assist the learned Advocate Commissioner to carry out the task assigned to him by this Court.
The report of the Advocate Commissioner be brought on record within three weeks from today. The spot verification shall be carried out in the presence of the revenue officials as well as the authorized representatives of both the parties.
Page No.# 4/4 After fixing the date of field visit, the learned Commissioner to formally intimate both parties as well as the Circle Officer of Dispur Revenue Circle for the purpose of ensuring their presence.
Registry to furnish a copy of this order along with a copy of the memo of appeal to Mr. Sheeladitya within three days from today.
The Advocate Commissioner shall be entitled to an amount of Rs. 10,000/- (Rupees ten thousand) only as remuneration for rendering his services. The said amount will be equally borne by both the parties involved in this proceeding and shall be paid within two weeks from today.
List the matter accordingly.
JUDGE Sukhamay Comparing Assistant