Mithila Jain v. Bharati Tumung and Anr

ORDER

11.08.2023 Heard Shri S. Sarma, learned Senior Counsel assisted by Shri A. Gautam, learned counsel for the petitioner. Also heard Shri TJ Mahanta, learned Senior Counsel assisted by Ms. P. Bhattacharya, learned counsel for the respondent no.1.

¶2This Court is of the opinion that the respondent no. 1 being the contesting respondent, this matter which is stated to be urgent in nature and also taking into consideration of the order impugned, this petition is taken up for disposal at the admission stage. Page No.# 2/4

¶3The facts of the case projected in this petition filed under Article 227 of the Constitution of India read with Section 151 of the CPC is that the respondent no. 1 as plaintiff had instituted Title Suit No. 299/2022 for ejectment an area of land. It is submitted that immediately on appearance of the defendant, who is the respondent no. 2 herein, the Suit was decreed on compromise.

¶4On the other hand, the right, title and interest of the petitioner is on the strength of a registered Sale Deed executed on 09.08.2020, much prior to the institution of the Suit. Shri Sarma, learned Senior Counsel by referring to the Sale Deed and also the Schedule appended thereto has submitted that the Sale Deed in respect of 3 Kathas of land covered by Dag Nos. 64 and 65 under KP Patta No. 52. However, since there was some error in the Dag Number, a registered rectification deed was executed on 07.06.2022 wherein the Dag Number was rectified to be only

¶65The learned Senior Counsel for the petitioner has also referred to the Namjari and the Jamabandi in which the name of the petitioner has been duly reflected by virtue of the registered Sale Deed and possession. However, on 06.03.2023, the petitioner was forcefully dispossessed from the land and building and was occupied by the respondent no. 1.

¶5Being thus situation, the petitioner has filed an application under Order XXI Rules 97, 99 and 101 read with Section 151 of the CPC. By drawing the attention of this Court to the said petition, the learned Senior Counsel has submitted that amongst other prayers, there was a specific prayer for grant of ad ex-parte interim injunction restraining the opposite parties from creating any third party interest and changing the nature and character of the Suit land.

¶6Shri Sarma, learned Senior Counsel by referring to the order dated 17.03.2023 which has been impugned in this petition has submitted by the aforesaid order, only notice has been issued without considering passing of any ad ex-parte interim order. Shri Sarma, learned Senior Counsel is also aggrieved by certain observations made by Page No.# 3/4 the learned Munsiff No. 2 in the said order dated 17.03.2023 which according, to his perception, has the propensity to cause prejudice to the petitioner in conducting the case.

¶7The learned Senior Counsel accordingly submits that the order is required to be interfered with and possession of the petitioner be restored. In this connection, the learned Senior Counsel have places reliance upon the following case laws-i. (1996) 4 SCC 144 [Samir Sobhan Sanyal Vs. Tracks Trade

(P) Ltd.] ii. (1996) 8 SCC 47 [Ram Chandra Verma Vs. Jagjat Singh Singhi]

¶8Per contra, Shri Mahanta, learned Senior Counsel for the respondent no. 1 has submitted that there is actually no cause of action in the present petition as no adverse order has been passed by the learned Munsiff No. 2. He submits that the petition filed under Order XXI Rules 97, 99 and 101 CPC has not been rejected and therefore there cannot arise any grievance to invoke the supervisory jurisdiction of this Court under Article 27 of the Constitution of India. He submits that under Order XXI Rule 99, orders are required to be passed by the Court after an adjudication of the application and unless the affected parties are given a scope of proper hearing, there cannot be adjudication and that stage is yet to be arrived at.

¶9The contention advanced by the learned counsel for the parties have been duly considered and the materials placed before this Court have been duly examined.

¶10The projection made by the petitioner is that the petitioner has accrued valid right, title and interest over the Suit land by virtue of Sale Deed duly executed and registered and by taking over the possession and unless such Sale Deed was the subject matter of challenge in which there is interference by the Court of competent jurisdiction, the dispossession could not have been made. The contention made by Shri Sarma, learned Senior Counsel that the decree appears to be one of the collusion Page No.# 4/4 has also been noted. However, at the same time, this Court is of the opinion that these contentions are primarily to be considered and orders to be passed thereupon by the Court before whom the application under Order XXI Rules 97, 99 and 101 CPC has been filed.

¶11This Court finds force in the contention of Shri Mahanta, learned Senior Counsel, who has submitted that unless there is an adjudication of such application, the prayer for handing over possession of the land in question on the first date cannot be justified.

¶12Though the said submission appears to be correct, at the same time, this Court is of the opinion that on a prima facie consideration of the documents and on hearing the submissions, the equities are required to be balanced and the interest of the respective parties are required to be protected till the adjudication of the application. Therefore, while the order dated 17.03.2023 passed by the learned Munsiff No. 2 whereby notices have been issued is not interfered with, this Court is of the opinion that interest of justice would be served if an order of protecting the rights and interest of the parties is passed. Therefore, it is directed that the learned Court below would take up the application for disposal expeditiously, preferably within a period of 4(four) months from today and till such disposal, it is directed that no third party rights are to be created and the nature and character of the Suit land should not be changed. This Court is also making clear that the observations which have been made by the Court in the order dated 17.03.2023 are to be treated to be prima facie in nature and would not come into the way at the time of final adjudication of the application.

¶13The petition accordingly stands disposed of.

¶14Interim order passed on 24.03.2023 stands vacated. JUDGE Comparing Assistant

Page No.# 1/4 GAHC010063952023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/79/2023 MITHILA JAIN W/O LOKESH JAIN R/O HOUSE NO. 7 DEBDARU PATH NEAR RAJDHANI MASJID GUWAHATI ASSAM 781006 VERSUS BHARATI TUMUNG AND ANR. D/O LT. BHOGIRAM TUMUNG R/O DHALBAMA P.O. AND P.S. GARCHUK GUWAHATI DIST. KAMRUP (M) ASSAM PIN 781035 2:PALASH KONWAR S/O PAMAN KONWAR C/O SMT. BHARATI TUMUNG R/O DHALBAMA P.O. AND P.S. GARCHUK GUWAHATI DIST. KAMRUP (M) ASSAM PIN 781035 ------------ Advocate for : MR S DAS Advocate for : MR. T J MAHANTA (r-1) appearing for BHARATI TUMUNG AND ANR. BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI