High Court · 2012

This appeal by the plaintiff is directed against the judgment an d decree dated 16.11.1996 passed by the learned Asstt. District Judge, Sonitpur at Tezpur in Title Appeal No.24/1993, allowing the appeal preferred by the defen dant Nos.1 to 6 in Title Suit No.115/1989 and by setting aside the judgment and decree dated 25.06.1993 passed by the learned Munsiff No.1, Tezpur in the said s uit, whereby and whereunder the appellant’s suit was decreed by the Trial Court. The appellant instituted Title Suit No.115/1989 in the Court of learned 2. Munsiff No.1 at Tezpur, against the respondent Nos.1 to 6 as defendants, praying for a decree for permanent/perpetual and prohibitory injunction restraining and prohibiting their men, agents, employees and/or associates from interfering wit h the possession and use of the suit room and the premises by the plaintiff and/ or from entering into the suit room and also ousting the plaintiff from the suit room and the premises, contending inter alia that the land measuring 13 lechas was originally belonged to Suleman Ali, out of which 6 lechas of land was transf erred by three sons of Suleman Ali, namely, Akhtar Ali, Akash Ali and Mohammad A li in favour of the defendant Nos.1 and 2 and another 6 lechas of land was sold to the predecessor-in-interest of the defendant Nos.3 to 6. It has also been ple aded that out of the remaining 1 lecha of land, the 3rd son of Suleman Ali i.e. Mohammad Ali sold his share of 1/3rd i.e. 48 sq.ft. in favour of the plaintiff b y a registered deed of sale No.3268 dated 28.07.1970 for the consideration of Rs .600/- along with the suit room No.4 over the said land and by virtue of such sa le the plaintiff became the owner. It has also been contended that since there w as an attempt by the defendant Nos.1 to 6 to dispossess the plaintiff from the s uit land as well as from the suit room No.4, the suit has been instituted prayin g for a decree of injunction, as noticed above.

3. The suit has been contested by the defendants by filing joint written st atement questioning the maintainability of the suit and also contending inter al ia that the suit is bad for waiver, estoppel and acquiescence. While admitting t hat the land originally belonged to Suleman Ali, the defendants, however, have d enied that the plaintiff is occupying the land/premises for more than 20 years a nd also have specifically denied that the plaintiff acquired any right over the suit land. The defendants have also denied that they ever tried to sell the land to anyone or tried to forcibly evict the plaintiff from the suit room. On the basis of the pleadings of the parties, the following issues were

4. framed by the Trial Court for determination:- (i) (ii) (iii) (iv) n the schedule land? (v) (vi) Whether there is any cause of action for the suit? Whether the suit is maintainable in the present form?. Whether the suit is properly valued and proper court fee has been paid? Whether the plaintiff has got right, title and interest and possession i Whether the plaintiff is entitled to decree as prayed for? To what relief or reliefs if any the parties are entitled to?

5. Both the parties have adduced evidences, both oral and documentary. The Trial Court upon appreciation of the evidences on record decreed the suit of the plaintiff vide judgment dated 25.06.1993, against which Title Appeal No.24/1993 was preferred by the defendant Nos.1 to 6, which has been allowed vide judgment and decree dated 16.11.1996. Hence the present appeal.

6. Vide order dated 05.05.1997 the appeal was admitted for hearing without, however, formulating any specific substantial question of law but observing tha t the appeal shall be heard on the substantial question of law as enumerated in the grounds taken in the memorandum of appeal.

7. During pendency of the appeal the respondent Nos.1 and 2, namely, Narend ra Ch. Mazumdar and Bhupati Mohan Bhadra, the defendant Nos.1 and 2 in the suit, died on 26.02.1998 and 24.06.2001, respectively. An application for substitutio n of the legal heirs of respondent Nos.1 and 2 was thereafter filed by the appel lant together with an application seeking condonation of delay of 3296 days and 2920 days in filing the said application for bringing the legal heirs of the res pondent Nos.1 and 2, respectively. The said applications were registered and num bered as Misc. Case Nos.210/2008 and 209/2008, respectively. The application see king condonation of delay (Misc. Case No.209/2008) in filing the application see king substitution has been dismissed vide order dated 05.10.2012 refusing to con done the delay. Consequently, the application for substitution (Misc. Case No.21 0/2008) has also been dismissed on the same day. A separate order, thereafter, w as passed on 05.10.2012 in the present appeal dismissing the same as against the respondent Nos.1 and 2/defendant Nos.1 and 2 in the suit. The names of the resp ondent Nos.5 and 6, who were the defendant Nos.5 and 6 in the suit were also str uck off from the list of respondents, pursuant to the order dated 07.09.2007 pas sed, in view of not taking the required steps for service within the time allowe d by the said order. Hence the appeal against the respondent Nos.5 and 6 also st ands dismissed leaving only the respondent Nos.3 and 4 in the fray.

8. I have heard Mr. R.K. Jain, learned counsel for the appellant as well as Mr. D. Mazumdar, learned counsel appearing for the respondent No.3. Mr. Jain, learned counsel for the appellant submits that having regard t 9. o the claim in the plaint, i.e. the prohibitory injunction, it cannot be said th at in view of the dismissal of the appeal as against the respondent Nos.1, 2, 5 and 6, the appeal against the respondent Nos.3 and 4, is not maintainable. It ha s been submitted that even though the appeal stands dismissed as against the sai d respondents/defendants, the prohibitory order of injunction can be passed agai nst the respondent Nos.3 and 4. On merit it has been submitted by Mr. Jain that as the plaintiff could prove the transfer of 48 sq.ft. of the suit land by a reg istered deed dated 28.07.1970, execution of which has also not been disputed by the defendants, apart from proving that there is an attempt by the defendants to disturb the plaintiff in his peaceful possession and enjoyment of the property, till the plaintiff is evicted by virtue of a decree to be passed by the Civil C ourt, the First Appellate Court ought to have affirmed the decree passed by the Trial Court issuing the prohibitory injunction. The learned counsel, therefore, submits that the judgment and decree passed by the Appellate Court needs interfe rence in second appeal. Mr. Mazumdar, learned counsel for the respondent No.3, on the other hand 10. , has submitted that since the plaintiff has prayed for a joint decree against a ll the defendants, the appeal as against the respondent Nos.3 and 4 is not maint ainable, in view of the dismissal of the appeal as against the respondent Nos.5 and 6 for not taking steps and abatement of the appeal as against the respondent Nos.1 and 2. The learned counsel further submits that it is evident from the di scussion made by the First Appellate Court that though the plaintiff claimed tha t there was an attempt to dispossess the plaintiff from the suit premises, no ev idence, however, could be led in that regard. The learned counsel further submit s that if the plaintiff has purchased the land and became the owner, he ought to have filed the suit for right, title, interest and cannot file the suit for res training the defendants from transferring the same when the defendants have acqu ired the right, title and interest by the purchase.

11. The appellant instituted the suit praying for joint decree against all t he defendants, namely, defendant Nos.1 to 6, restraining them from interfering w ith the possession of the plaintiff. The appellant, however, did not take any st eps for bringing the legal heirs of the respondent Nos.1 and 2 on record, who di ed during pendency of the appeal, on time. Though the appellant filed an applica tion for bringing the legal heirs of the respondent Nos.1 and 2 together with th e application seeking condonation of delay, the said applications, as noticed ab ove, have been dismissed, thereby dismissing the appeal as against the responden t Nos.1 and 2 on abatement. It also appears that pursuant to the order dated 07. 09.2007 the names of the respondent Nos.5 and 6 have been struck off from the li st of respondents, consequently the appeal stands dismissed as against the said respondents also. The appellant’s suit being for a joint decree, in view of the abatement of the appeal as against the respondent Nos.1 and 2 and dismissal of t he same as against the respondent Nos.5 and 6, the appeal as against the respond ent Nos.3 and 4 only is not maintainable. That apart, it is evident from the dis cussion made by the learned First Appellate Court that though the plaintiff has claimed that there was an attempt on the part of the respondent Nos.1 to 6 to di spossess the plaintiff, he, however, could not prove the same by adducing any co gent evidence. The injuries to be caused, for the purpose of grant of injunction could not be proved by the plaintiff/appellant. In view of the above, there is no substantial question of law involved i 12. n this appeal. Hence the appeal stands dismissed. No costs. The Registry is dire cted to send down the records forthwith.