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2008 DIGILAW 403 (GAU)

Hulash Chand Gulgulia v. Rajkumar Gulgulia

2008-06-02

AMITAVA ROY

body2008
UDGMENT Amitava Roy, J. 1. The subject matter of challenge are the orders dated 18.04.2008, passed by the learned Civil Judge No. 1, Cachar, Silchar allowing the Misc. Appeal No. 7/2007, filed by the opposite party No. 1/Plaintiff and granting temporary injunction as prayed for in M.C. No. 21/2008, filed by him. By this order in the miscellaneous appeal, the order dated 15.03.2008 passed by the learned Munsiff No. 2, Cachar, Silchar in M.C. No. 11/2002, refusing to grant temporary injunction to the opposite party No. 1/Plaintiff, was interfered with. 2. I have heard Mr. G.K. Sharma Baruah, Senior Advocate assisted by Ms. M. Barthakur, Advocate for the Appellant/Defendant and Mr. G.N. Sahewalla, Senior Advocate assisted by Ms. S. Senapati, Advocate for the opposite party No. 1/Plaintiff, who has entered appearance through a caveat. The caveat stands discharged. 3. The opposite party No. 1/Plaintiff instituted T.S. No. 9/2008, in the Court of Munsiff No. 2, Cachar, Silchar praying for a decree, inter alia for a declaration of his right, title and interest in the land, described in Schedule II to the plaint and for recovery of khas possession thereof, by removing the Appellant/Defendant, his men etc. therefrom. An application for temporary injunction under Order 39 Rule 1 Code of Civil Procedure (hereafter for short referred to as the 'Code'), was also filed for restraining the Petitioner and his agent etc. from raising any boundary wall or making any other construction on the Schedule II land or from changing the nature and feature thereof, in any manner whatsoever, till the disposal of the suit. The pleaded case of the opposite party No. 1/Plaintiff, in brief, is that consequent upon a family arrangement/settlement executed and signed by the parties on 30.04.2001, he was allotted the property described in Schedule H. The Petitioner/defendant was provided with the land contained in Schedule F to the Agreement. In T.S. No. 17/2002, instituted by the opposite party No. 1/Plaintiff against the Petitioner/Defendant, his right, title and interest in respect of Schedule D property was declared along with confirmation of his possession thereof, observing, inter alia that the family arrangement had already been acted upon by the parties thereto. In T.S. No. 17/2002, instituted by the opposite party No. 1/Plaintiff against the Petitioner/Defendant, his right, title and interest in respect of Schedule D property was declared along with confirmation of his possession thereof, observing, inter alia that the family arrangement had already been acted upon by the parties thereto. The opposite party No. 1/Plaintiff claimed that the property described in Schedule H to the family arrangement to be corresponding to the one in Schedule D to in T.S. No. 17/2002, as well as the land in Schedule I to the present plaint. In the present suit, he alleged that in the later part of September 2007, the Petitioner-Defendant had encroached upon a portion of Schedule I land and erected old RCC pillar over it. The land described in Schedule II to the plaint represents the allegedly encroached portion of Schedule I land. Temporary injunction was prayed for, pleading that if the boundary wall as proposed, was allowed to be constructed by the Petitioner/Defendant, the opposite party No. 1/Plaintiff would be denied the use and enjoyment of the electric transformer and the power house, which in terms of the family arrangement were agreed to be availed by both the parties. 4. The Petitioner/Defendant in his written objection, while questioning the identity of the suit land because of the wrong description thereof, contended that the construction of the boundary wall by him, by no means would adversely affect the use and enjoyment of the power house and transformer by the opposite party No. 1/Plaintiff. No evidence was adduced by the parties and the learned trial Court by the order dated 15.03.2008, passed in M.C. No. 11/2002 (registered on the application for temporary injunction) rejected the same. The learned Lower Appellate Court by the order impugned, has not only interefered with the determination of the learned trial Court but also by order dated 18.04.2008, passed in M.C. No. 21/2008, registered on an application under Order 39 Rule 1 of the Code read with Section 151 thereof, filed in the appeal, granted temporary injunction as prayed for. 5. Mr. 5. Mr. Sharma Baruah, has urged with reference to the memorandum of family agreement that as in terms of Clause 9 thereof, both the Petitioner and the opposite party are jointly entitled to use and enjoy the electric transformer, the apprehension of the latter is wholly unfounded and that the learned Lower Appellate Court manifestly erred in law and on facts in passing the impugned orders by overlooking this aspect of the matter. As in terms of Clause 10 of the said family arrangement, a shared ownership of the powerhouse standing on the land allotted to the Petitioner/Defendant has been agreed upon, the misgiving of the opposite party No. 1/Plaintiff that he would be deprived of the use thereof, if the construction of the wall is not restrained, is ill conceived, he urged. The learned Senior Counsel, also referred to the order dated 17.01.2008, of the Chairman, Silchar Development Authority, Silchar to highlight the findings contained in an inspection report, revealing existence of pillars demarcating the boundary of both the parties erected in course of the partition. He point out that by the said order, the Petitioner/Defendant was required to construct his boundary wall in strict compliance of the permission granted by the Silchar Development Authority. Mr. Sharma Baruah, therefore, urged that the allegation of encroachment by the Petitioner/Defendant on the land of the opposite party No. 1/Plaintiff, is purported and imaginary. The learned Senior Counsel, contended that the trial Court having rejected the prayer for injunction on a meticulous and exhaustive consideration of the materials on record, the Lower Appellate Court ought not to have overturned the determination without recording convincing and cogent reasons for differing therefrom. To reinforce of his arguments, Mr. Sharma Baruah, placed reliance on the decision of the Apex Court in Sree Jain Swetamhar Terapanthi Vid (s) v. Phundan Singh and Ors. (1999) 2 SCC 377 and of this Court in Bindeshwar Narayan Singh and Ors. v. Managing Committee, Shri Sundarmal Hindi High School and Ors. AIR 1982 Gau. 69 . 6. Mr. Sahewalla, in reply, has urged that the construction of the proposed wall, if not impleaded at the stage, the opposite party No. 1/Plaintiff would be denied his right to use and enjoy the transformer and the power house in apparent breach of the solemn consensus on which the family arrangement was entered into by the parties. 69 . 6. Mr. Sahewalla, in reply, has urged that the construction of the proposed wall, if not impleaded at the stage, the opposite party No. 1/Plaintiff would be denied his right to use and enjoy the transformer and the power house in apparent breach of the solemn consensus on which the family arrangement was entered into by the parties. The learned Senior Counsel stood by the allegations of encroachment of the land of the opposite party No. 1/Plaintiff by the Petitioner/Defendant. 7. The pleadings of the parties and the arguments advanced, have received the due consideration of this Court. Admittedly, by the family arrangement, the properties described in Schedule H and F, have fallen in the share of the opposite party No. 1/Plaintiff and the Petitioner/Defendant respectively. Both the Courts below had noticed some discrepancy in the eastern boundary of the land described in Schedule H to the family arrangement. The Petitioner/Defendant's land in Schedule F to the family arrangement is located to the adjacent north of that of the land of the opposite party No. 1/Plaintiff in Schedule H. None of the Courts below has yet recorded any finding sustaining the opposite party No. 1/Plaintiff's allegation of encroachment of his land by the Petitioner/Defendant. The learned trial Court noticed the admitted fact that the Petitioner/Defendant is in possession of the land described in Schedule II to the plaint and had stacked building materials for construction of the wall. It also recorded that the transformer was installed in the land of the Petitioner/Defendant and that as per the family arrangement both the parties had the right to use and enjoy the same. It negated the plea of the opposite party No. 1/Plaintiff that constructions of the boundary wall, ipso facto, would result in an obstruction to the use and enjoyment of the transformer and powerhouse by the opposite party No. 1/Plaintiff. 8. The learned Lower Appellate Court, while dismissing the discrepancy in the eastern boundary of the land described in Schedule H to the family arrangement to be inconsequential, held the view that the opposite party No. 1/Plaintiff had made out a prima facie case for the grant of temporary injunction and that greater inconvenience will be caused to him if the relief as prayed for, is refused. The balance of convenience was also held in favour of granting injunction. The balance of convenience was also held in favour of granting injunction. Noticeably, the learned Lower Appellate Court did not uphold the opposite party No. 1/Plaintiff's allegation of encroachment of the suit of the land by the Petitioner/Defendant. It also did not record any reason for its disagreement with the conclusions arrived at by the learned trial Court on facts. No reason was mentioned either to sustain the opposite party No. 1/Plaintiffs apprehension of being deprived of the use and enjoyment of the common powerhouse and the transformer situated on the land of the Petitioner/Defendant, in case, the boundary wall by him, was allowed to be constructed. 9. The Apex Court in Sree Jain Swetambar Terapanthi Vid(s) (supra), while dwelling on the scope of interference by an Appellate Court with an order passed by a sub-ordinate forum on the issue of temporary injunction, had in essence held that in case the order impugned, had been passed without considering the relevant materials on record, interference therewith, is permissible, even without scrutinizing the merits of the case. However, if the findings or conclusions are considered erroneous on the facts established, it would be imperative to record contrary findings on an appropriate discussion of the materials on record to upset the order of the learned trial Court. 10. This Court in Bindeswar Narayan Singh and Ors. (supra), on the same issue had ruled that if the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view cannot justify interference with the trial Court's exercise of discretion and such a course would be open if it appears to the higher forum that such discretion had been exercised unreasonably or capriciously or by ignoring relevant facts. 11. In absence of any finding by the learned Courts below that the Petitioner/Defendant had encroached upon any portion of the land allotted to the opposite party No. 1/Plaintiff under Schedule H to the family arrangement and any material as well, to demonstrate that the opposite party No. 1/Plaintiff's apprehension of being denied use and enjoyment of the powerhouse and transformer on the construction of the wall by the Petitioner/defendant is real and tangible, I am of the unhesitant opinion that the learned Lower Appellate Court erred in passing the impugned orders in the facts and circumstances of the case. The view taken by the learned trial Court in the exercise of its judicial discretion is a plausible one on the basis of the materials on record and cannot be denounced as absurd, arbitrary and perverse. The appeal against an order granting or refusing injunction is essentially one of principle and in view of the constraint in the scope of interference therewith by an appellate forum as judicially propounded hereinabove, the impugned orders are unsustainable in law and on facts and are thus interfered with. The facts and circumstances of the case justify the invocation of this Court's supervisory jurisdiction under Article 227 of the Constitution of India. As a result the orders dated 18.04.2008, passed by the learned Civil Judge No. 1, Cachar, Silchar in Misc. Appeal No. 7/2007 and M.C. No. 11/2002 are hereby set aside. The revision petition stands allowed. No costs.