Assam Schedule VII Form No.143 - Kamrup(M) District Judiciary

Assam Schedule VII Form No.143 HIGH COURT FORM NO. (J) 13

FORM OF ORDER SHEET

District : -Kamrup (Metro), Guwahati

In the Court of Munsiff No.2, Kamrup

(Metro), Guwahati.

Present:- Mr. Tridip Kumar Bhattacharyya, M.A, LL.B, AJS

Misc (J) Case No.98 of 2017 (Arising out of T.S.No.64 of 2017) Smti. Santi Bala Das & Ors. Vs.- Sri Arun Das & Anr. Opp. Parties.

1 2 3

Date of order

ORDER

Signature of Court

26.07.21

The instant Misc.(J) case has

arisen out of T.S. No.64 of

2017 filed by the plaintiffs

/petitioners u/o XXXIX Rule

1 & 2 r/w Section 151 of

C.P.C. praying for temporary

injunction restraining the

Opposite Party from doing any

construction works over the

Schedule-D land and further

restraining him from selling or

alienating the Schedule-A, B, C,

(C/Page)

of 12

Misc (J) Case No.98 of 2017 (Arising out of T.S.No.64 of 2017)

26.07.2021 (Contd. Page)

E and F land to any other

person till disposal of the suit.

The case of the plaintiffs

/petitioners, in brief, is that the

Predecessor-in-Interest of the

petitioners and the Opposite

Parties were three brothers,

namely, Late Umesh Das, Late

Digesh Das and Late Jogesh

Das. They were the original

pattadars of the six numbers of

Schedule land, viz, Schedule-A,

B, C, D, E and F. According to

the petitioners some parts of

the Schedule-D land is a basti

land where the petitioners and

the opposite party No.2 are

residing. The other Schedule

lands are agricultural land

where the petitioners have

authorized the opposite parties

to cultivate since long time and

as a price of work the

petitioners used to give share

of harvest to the opposite

(C/Page)

of 12


26.07.2021 (Contd. Page)

parties. It is alleged in the

petition that on 20.02.2017

when the petitioners along with

other relatives visited the

Schedule-A, B, C, D, E and F

land, surprisingly, the opposite

parties had restrained them

from entering into the Schedule

land and also threatened the

petitioner with dire

consequences. The petitioner

came to know that taking

advantage of cultivating the

Schedule-A, B, C, E and F land

the opposite parties are trying

to handover the said plots of

land to some other persons.

Moreover, on 11.03.2017 the

opposite parties have

accumulated construction

materials over the Schedule-D

land to start construction of

one pacca latrin and bath room

without the land being

partitioned among the parties.

(C/Page)

of 12


26.07.2021 (Contd. Page)

Being aggrieved, the

petitioners have approached

this court seeking perfect

partition of the Schedule-A, B,

C, D, E and F land as well as

permanent injunction. The

petitioners also prays for

temporary injunction as stated

above.

The opposite parties have

contested the prayer, but did

not file any written-objection.

I have heard both sides

at length.

Learned Counsel for the

petitioners submits that on the

basis of the contentions made

in the plaint, if the opposite

parties are not restrained from

selling or alienating the

Schedule-A, B, C, E and F land

and/or constructing pacca

structures over the Schedule-D

land without having any perfect

partition and if during pendency

(C/Page)

of 12


26.07.2021 (Contd. Page)

of the suit the opposite parties

creates any third party right or

changes the nature and

character of the suit land then

the petitioners will suffer

greater inconvenience and loss.

On the other hand, Learned

Counsel for the opposite parties

submits that petitioners have

no physical possession over the

Schedule-A, B, C, E and F.

Moreover, they do not have any

right, title and interest and

possession over the land as

mentioned in the Schedule-D

except 1 Bigha ½ Lechas as

per Sale Deed No.8108. It is

further submitted by the

petitioners have no possession

over the Schedule-E land and,

as such, they are not entitled to

get any order of injunction over

the said plot of land. The

opposite parties further denied

that they want to construct any

(C/Page)

of 12


26.07.2021 (Contd. Page)

pacca structure over the

Schedule-D land and/or selling

or alienating the other Schedule

lands to any third person.

I have considered the

submissions of both sides as

well as contents of the

pleadings and also perused the

case-record and annexed

documents.

Now, it is a settled law

that temporary injunction can

be granted if the case is

covered by the following three

points.

i) On making out a prima-

facie case.

ii) On showing the balance

of convenience in the

petitioner’s favour i.e.

refusal of the injunction

would cause greater

inconvenience to the

petitioners.

iii) On refusal of the

(C/Page)

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26.07.2021 (Contd. Page)

injunction, the

petitioners would suffer

irreparable loss.

Herein the instant case,

the claims of the plaintiff

/petitioner is that by virtue of

the Sale Deeds as mentioned in

the plaint they have also

inherited the right, title and

interest over the share of the

land purchased by their

Predecessor-in-Chief Late

Umesh Das along with his other

brothers Late Digesh Das and

Late Jogesh Das. As such, they

want a perfect partition of the

entire plot of land. It is further

contended that in some

portions of the Schedule land

the names of the petitioners

along with opposite parties got

mutated after death of Late

Umesh Das, Late Digesh Das

and Late Jogesh Das. However,

in certain parts of Schedule

(C/Page)

of 12


26.07.2021 (Contd. Page)

land, the names of the parties

are yet to be mutated. I have

perused the copies of

jamabandi, revenue paying

receipts and copies of sale

deeds annexed to the plaint.

On the other hand, the

Opposite Parties have denied

the right, title and interest as

well as possession of the

petitioners from the certain

parts of Schedule land in

contrary to the claim of the

petitioners.

The expression prima-

facie means at the first sight or

at the first appearance or on

the face of it or so far as it can

be judged from the first

disposal. The issues offered by

the petitioners are triable issues

and on the face of it there is a

probability of plaintiff/petitioner

to obtain the relief(s) prayed at

the conclusion of trial on the

(C/Page)

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26.07.2021 (Contd. Page)

basis of materials placed before

the Court. Thus, it can be

safely held that there is a

prima-facie case for trial.

Balance of convenience

means that comparative

mischief or inconvenience

which is likely to arise from

withholding the injunction will

be greater then that which is

likely to arise from granting it.

The petitioner in the instant

petition stated that they are in

possession of the Schedule-D

land and they have also

authorized the opposite parties

to cultivate in Schedule-A, B, C,

E and F land. It is further

stated that petitioners have got

their shares of paddy crops at

the time of harvest from the

opposite parties and also give

their shares to the opposite

parties as a price of works.

Further it is contended that in

(C/Page)

of 12


26.07.2021 (Contd. Page)

the Schedule-D land, the

opposite party has accumulated

construction materials and

pacca structures although the

same is denied. They have

specifically not denied the

possession of the petitioners

over any part of the Schedule-D

land. Therefore, the court

believe that if without any

perfect partition any pacca

structure is made in Schedule-D

land and/or if during pendency

of the suit any part of other

Schedule lands are alienated by

any manner, to some third

party by the opposite party

then it will be the petitioners

who would suffer greater

inconvenience then the

Opposite Party. Moreover, in

such situation it will be very

difficult for the court to

properly adjudicate the instant

partition suit. Moreover, since it

(C/Page)

of 12


26.07.2021 (Contd. Page)

is not specifically denied that

petitioners are in possession of

the Schedule-D land. Therefore

if the nature and feature of the

suit property is transformed or

rights of third party are created

during the pendency of the suit

and subsequently, if the suit is

decreed in favour of the

petitioner, then, there is

probability that the petitioners

may suffer irreparable loss

which cannot be made good by

adequate damages. Further,

the same may result in the

multiplicity of suits.

In view of the above

discussion, it can be concluded

that it is a fit case for granting

temporary injunction.

The opposite parties are

hereby restrained from carrying

out any construction works

over the Schedule-D land and

selling or alienating any part of

(C/Page)

of 12


26.07.2021 (Contd. Page)

Schedule lands to any third

party until final disposal of

T.S.No.64 of 2017.

The Misc.(J) Case is

allowed and accordingly

disposed of on contest.

No order as to costs.

Munsiff No.2,

Kamrup (M),

Guwahati.

Assam Schedule VII Form No.143 - Kamrup(M) District Judiciary

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Transcript of Assam Schedule VII Form No.143 - Kamrup(M) District Judiciary