Gauhati High Court
Krishna Gopal Karmakar vs Janardhan Saha And 5 Ors on 15 November, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010122092019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 79/2019
1:KRISHNA GOPAL KARMAKAR
S/O LT. GOUR CHANDRA KARMAKAR, R/O VILL. BAGRABARI, ARAIANI,
P.O. AND P.S. BAGRIBARI, DIST.-KOKRAJHAR, BTAD, ASSAM
VERSUS
1:JANARDHAN SAHA AND 5 ORS.
S/O LT. KALIDAS SAHA, R/O BAGRIBARI, ARAIANI, P.O. AND P.S.
BAGRIBARI, DIST.-KOKRAJHAR, BTAD, ASSAM
2:RISHIKESH SAHA
S/O LT. KALIDAS SAHA
R/O BAGRIBARI
ARAIANI
P.O. AND P.S. BAGRIBARI
DIST.-KOKRAJHAR
BTAD
ASSAM
3:GOPAL SAHA
S/O LT. SRIDAM SAHA
R/O VILL- BAGRIBARI
ARAIANI
P.O. AND P.S. BAGRIBARI
DIST.-KOKRAJHAR
BTAD
ASSAM
4:BISWAJIT SAHA
S/O LT. SRIDAM SAHA
R/O VILL- BAGRIBARI
ARAIANI
P.O. AND P.S. BAGRIBARI
DIST.-KOKRAJHAR
Page No.# 2/4
BTAD
ASSAM
5:NANDA DULAL SAHA
S/O LT. SRIDAM SAHA
R/O VILL- BAGRIBARI
ARAIANI
P.O. AND P.S. BAGRIBARI
DIST.-KOKRAJHAR
BTAD
ASSAM
6:MAYA RANI SAHA
W/O LT. SRIDAM SAHA
R/O VILL- BAGRIBARI
ARAIANI
P.O. AND P.S. BAGRIBARI
DIST.-KOKRAJHAR
BTAD
ASSA
Advocate for the Petitioner : MR R DHAR
Advocate for the Respondent : MD H R AHMED
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
15.11.2019 Heard Mr. R Dhar, learned counsel for the petitioner. Also heard Mr. BD Deka, learned counsel for the respondent nos. 1 & 2 and Mr. A Islam, learned counsel for the respondent nos. 3 to 6.
The petitioner as the plaintiff filed Title Suit No. 6/2016 in the court of learned Civil Judge, Kokrajhar along with an application under Order XXXIX Rule 1 and 2 of the CPC. The said petition was registered as Misc. (J) Case No. 6/2016 in the said court below. Upon motion the learned trial court directed the parties to the suit to maintain status quo in respect of the nature, feature and status of the suit land as on the date of passing the order. Being Page No.# 3/4 aggrieved the defendants/respondents filed an appeal under Order XLIII Rule 1(r) of the CPC challenging the said order dated 20.03.2018 passed in Misc. (J) Case No. 6/2016 which was registered as Misc. Civil Appeal No. 2/2018 in the court of learned Additional District Judge (FTC), Kokrajhar. The said appeal was disposed of vide the impugned judgment dated 16.03.2019 thereby setting aside the order of status quo passed by the learned trial court. Being aggrieved, the plaintiff/petitioner is before this court by filing this revision petition.
Mr. Dhar submits that the learned court below while passing the impugned judgment came to the finding as if the suit was disposed of after the trial. He is apprehensive that the findings of the appellate court, if allowed to remain, will adversely affect the plaintiff/ petitioner. The court below came to the finding that Late Mahendra Saha, the predecessor-in- interest of Jhantu Saha from whom the plaintiff purchased the suit land measuring 1K 7½ Ls was entitled at least to the extent of 17 Ls. Under such circumstances, if the petitioner is not protected even from the said 17 Ls of land irreparable loss would be faced by the plaintiff/petitioner.
On the other hand, Mr. Deka submits that the appellate court has specifically mentioned while disposing of the said appeal that the observations made therein the said judgment were in order to decide the injunction application only but without entering into the merit thereof. Accordingly, there should not be any apprehension as submitted by Mr. Dhar. On the other hand, regarding the factual part Mr. Deka supports the view taken by the appellate court to the extent that the land sold to Gopal Saha and Girindra Saha measuring 1K 1L was sold out of the share of Late Mahendra Saha, the predecessor-in-interest of Jhantu Saha as per the sale deed and as against the said documentary evidence the claim of the plaintiff/petitioner is that the said land was sold by both the brothers i.e. Mahendra Saha and Kalidas Saha. Accordingly, the first appellate court considered the said document and came to a finding in order to its satisfaction the prima facie case required and for passing an order of temporary injunction.
I have given due consideration to the submissions of the learned counsel for the parties. An order of temporary injunction as its name indicates merges with the final judgment passed by the court while deciding a suit. It is mainly for preservation of the suit property so that any act or acts of either of the parties over the disputed property cannot affect the right, title and Page No.# 4/4 interest of either of the parties to the suit. Here in the present case in hand, the appellate court was satisfied that Jhantu Saha could not sell land beyond 17 Ls. On the other hand, the sale deed on the basis of which the plaintiff/ petitioner raised his claim that the said Jhantu Saha sold land measuring 1K 7½ Ls which he got from his father Mahendra Saha. But keeping in view the fact pleaded and the documents relied the court below came to its finding that Mahendra Saha after selling the land to Gopal Govinda Saha as per the Regd. Sale deed left with only 17 lechas of land out of the total land under his share. The court below took note of the fact that the order of status quo passed by the learned trial court was bad inasmuch as in order to protect 17 Ls of land prima facie, the learned trial court restrained enjoyment of the rest of the land measuring more or less 10 Ls by the other co-sharers. In my considered view, the learned court below was correct inasmuch as even if the plaintiff/petitioner is taken into consideration as one of the co-sharers along with the defendants/respondents on the strength of purchase then also the other co-sharers cannot be restrained from enjoying the property until and unless there is pleading that partition amongst the parties to the suit was carried out. Drawing the analogy if at all the plaintiff/petitioner is entitled to the extent of 17 Ls of land which is the prima facie finding in such a situation as submitted by Mr. Dhar if the defendants/ respondents are allowed to carry out construction over the suit property and keeping in view the reasoning of the appellate court the impugned order is modified to the extent that if any construction(s) are carried out by the defendants/ respondents covering the suit land, the same shall be at their risk and cost. With the said modification this revision petition stands disposed of.
Needless to say, the observation made by the appellate court on in this order cannot be taken into consideration by the trial court while deciding the suit on its merit.
Interim order passed earlier stands vacated.
JUDGE Comparing Assistant