High Court · 2012

The petitioners, who are the defendant Nos. 1, 2 and 3 in the Title Suit No. 45/ 2009, by the present petition have challenged the order dated 18.12.2010 passed by the learned District Judge, Jorhat in Misc. Appeal No. 3/2010 whereby and whe reunder the appeal preferred by the present petitioners along with another namel y, Suklal Mahli has been dismissed by affirming the order of injunction passed b y the learned Civil Judge, Jorhat in Misc. (J) Case No. 53/2009 arising out of t he aforesaid title suit. The present respondent instituted the aforesaid suit praying for a decree declar ing and confirming its possession over the suit land, apart from a decree declar ing that the plaintiff is entitled to possess the suit land on the basis of the long, uninterrupted and continuous possession and for permanent injunction, cont ending that the plaintiff is possessing the plot of land measuring 29 bighas 3 k athas and 13 lechas, which was earlier acquired by the Govt. of Assam under the provision of the Assam Fixation of Ceiling on Land Holding Act and allotted to p roforma defendant Nos. 5 to 10 being the land less persons at that time, possess ion of which was handed over to the plaintiff in the year 1992 by virtue of a ve rbal agreement between the proforma defendant Nos. 8 to 12 and the defendant No. 7 for cultivation of tea and accordingly he is in possession of the suit proper ty. It has also been contended that the defendant Nos. 1 to 6 on 8.12.2009 tresp assed into the suit land and threatened the plaintiff’s garden workers to stop t he normal work and also claimed that the entire suit land belongs to them. The p laintiff also filed an application under Order 39 Rule 1 and 2 CPC praying for t emporary injunction restraining the opposite parties, who are the defendant Nos. 1 to 7 in the suit, from interfering with the possession of the plaintiff over the suit land. The defendant Nos. 1, 2, 3, 6 and the proforma defendant No. 10 contested the su it by filing joint written statement contending that the plaintiff is not the so le proprietor of Lakhimi Tea Estate comprising the aforesaid 29 bighas and odd l and as there are other seven persons namely Sri Hobon Singh, Sri Kulai Mahli, Sr i Rupeswar Mahli, Sri Dhanua Mahli, Sri Puku Mahli, Sri Hariram Mahli and late L akhi Mahli who are the owners and the possessors of the suit land. The plea of n on joinder of necessary parties has also been raised. It has also been pleaded t hat the persons in whose favour the allotment of the land was made by the Govt. handed over the possession of the land to the plaintiff by virtue of an agreemen t for a period of ten years which expired on 30.1.2002 and though there was a st ipulation to hand over the possession the plaintiff did not do so. The defendant s in the written statement while on one hand has admitted the possession of the plaintiff, at the same time claimed that they are in possession and constructed some dwelling houses over the suit land. In para 5 it has also been specifically pleaded that the defendant Nos. 1 and 2 are not involved in the said tea garden and they have pointed out the illegality committed in the tea garden and as suc h they are wrongly added as party and thereby pleaded that the suit is bad for m isjoinder of parties. In the objection filed against the prayer for injunction t he same stand has been taken. The trial court upon appreciation of the pleadings and on hearing the learned co unsel for the parties, initially rejected the prayer for temporary injunction vi de order dated 23.12.2009 which order was, however, interfered with by the appel late court vide order dated 3.3.2010 in Misc. Appeal No. 1/2010 remanding the ma tter of injunction for fresh consideration by the trail court and accordingly th e learned Civil Judge vide order dated 7.5.2010 upon hearing the learned counsel for the parties and on consideration of the pleadings of the parties passed the order of temporary injunction restraining the opposite parties/defendant Nos. 1 to 6, their men, agents and servants from interfering with the possession of th e plaintiff over the suit land in any form and manner in cultivating the tea, pr uning, tipping, manuring and plucking the tea leaves and other garden related wo rks till the disposal of the suit. Being aggrieved the defendant Nos. 1 to 4 filed the Misc. Appeal No. 3/2010 whic h has been dismissed vide judgment and order dated 18.12.2010 and hence the pres ent revision petition. I have heard Mr. Mahanta, learned counsel for the petitioners as well as Mr. J R oy, learned counsel for the respondent. It is contended by Mr. Mahanta, learned counsel for the petitioners that the app ellate court while rejecting the appeal preferred by the aforesaid defendants di d not discuss the three golden principles of granting injunction namely; the str ong prima facie case, balance of convenience and irreparable loss and injury. It has also been submitted that though the appellate court has noticed the stand o f the defendants that they have dwelling houses over the suit land, the said asp ect has not been considered. The further contention is that since the defendants have dwelling houses over the suit land the order of injunction has the effect of prohibiting them from ingress and egress to their dwelling house and hence th e order dated 18.5.2010 granting injunction by the trial court requires interfer ence in exercise of the jurisdiction under Article 227 of the Constitution of In dia. Mr. Roy, learned counsel for the respondent, supporting the order passed by the appellate court, submits that it is evident from the stand taken by the aforesai d defendants in the joint written statement that the present petitioners do not claim to be the owner of the suit land and in fact in the written statement file d it has been pleaded that the defendant Nos. 1 and 2/present petitioner Nos. 1 and 2 have no connection with the suit land and they have also taken the plea of misjoinder of parties. The learned counsel, therefore, submits that the order o f injunction passed by the court below does not require any interference in exer cise of the jurisdiction under Article 227 of the Constitution of India. It appears from the order dated 7.5.2010 passed by the trial court granting inju nction that the three golden principles i.e. prima facie case, balance of conven ience and irreparable loss and injury required to be considered while granting o r refusing to grant injunction were considered and thereafter passed the order g ranting injunction in favour of the plaintiff. The appellate court by the order dated 18.12.2010 dismissed the appeal preferred by the four defendants including the present petitioners having found that the order of injunction passed by the trial court do not require any interference. Since the appellate court has agreed with the view expressed by the trial court in granting injunction, thereby agreeing with the prima facie case, balance of c onvenience and irreparable loss and injury, is not required to reiterate the sam e in the order. That apart, it is evident from the stand taken by the defendants in the joint written statement that the defendant Nos. 1 and 2 are no way conne cted with the suit land. Neither in the written statement nor in the objection f iled it has been specifically stated which of the defendants have dwelling house over the suit land. That being the position, I do not consider it to be a fit case to disturb the or der of injunction passed. However, to protect the interest of the defendants the plaintiff is directed to maintain the proper accounts relating to the sale proceeds received towards the sale of green tea leaves. The plaintiff, however, is restrained from receiving s ale proceeds from any buyer in cash which they have to receive by account payee cheques only. The sale proceeds of the green tea leaves to be sold to Saujpur Gr een Tea and Udaymukhi Samanaya Small Tea Growers Self Help or any other buyers s hall be paid to the plaintiff only by means of account payee cheques and in any case not in cash. The plaintiff shall be entitled to utilize such sale proceeds subject to furnish ing an undertaking before the trial court that in the event the suit is dismisse d and any direction is issued by the civil court for payment of the sale proceed s to any party he shall pay the same. Such undertaking shall be filed within 15 days from today. The revision petition is accordingly disposed of. No cost.