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2011 DIGILAW 789 (GAU)

Suren Ch. Mikir v. Jeuti Prabha Roy

2011-09-21

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. The opposite-party herein instituted, Title Suit No. 87/2009, seeking relief, inter alia, of declaration of her rights, title and interest over the suit land, confirmation of her possession over the same and also permanent injunction restraining the present petitioners, as defendants in the said suit, their men, agent, etc., from disturbing peaceful possession of the plaintiff over the suit land and/or alienating the suit land. The plaint was also accompanied by an application made under Order XXXIX , Rule 1 read with Section 151 of the CPC, wherein a prayer was made for granting interim injunction restraining the defendants, their men, agents, etc., from disturbing peaceful possession or, in any way, making attempt to alienate the suit land. This application gave rise to Misc. Case No. 111/2009, whereupon an interim order was made, on 2.3.2009, by the learned Munsiff No. 1, Kamrup, Guwahati, in Misc. Case No. 111/2009, directing the parties to the suit to maintain status quo as on the date of passing of the said interim order. This order was made absolute by yet another order passed on 4.1.2011. Alleging to the effect, inter alia, that having obtained the order, directing the parties to maintain status quo, the plaintiff had dumped earth and sand on the suit land and had been levelling the suit land, two petitions were filed by the present petitioners, as defendants, in the said suit. One of these applications was made seeking punishment of the plaintiff for disobedience of the injunction order, whereby the learned trial Court had directed the parties to maintain status quo; the other petition was made seeking appointment of an Advocate Commissioner to make investigation into the matter so that the real state of affairs over the suit land can be correctly gathered by the Court. These application were also supported by some photographs of the suit land. The application, seeking appointment of Advocate Commissioner, gave rise to Misc. Case No. 171/2011. 2. These application were also supported by some photographs of the suit land. The application, seeking appointment of Advocate Commissioner, gave rise to Misc. Case No. 171/2011. 2. Having received objection to the application, seeking appointment of Advocate Commissioner, the learned Court below passed an order, on 9.5.2011, rejecting the prayer for appointment of Advocate Commissioner on the ground that even if a Commissioner is appointed, he (the Commissioner) would not be able to say anything regarding the date on which the red soil had been dumped on the suit land, i.e., whether the soil had been dumped and the land was levelled before passing of the order of injunction or thereafter. Aggrieved by the order, dated 9.5.2011, this revision has been filed. 3. Heard Mr. R. Borpujari, learned counsel, assisted by Mr. J. Roy, learned counsel, appearing on behalf of the petitioners. Though, on receipt of notice of the revision petition, an Advocate was appointed by the plaintiff-opposite party and his name stands reflected in the cause list today, none has appeared on behalf of the plaintiff-opposite party. 4. While considering the present petition, the statements, made by the plaintiffs, in paragraph 3 and 6 of the plaint (Title Suit No. 87/2009), may be taken note of. Paragraph 3 and 6 read as under: 3. That the plaintiff states that the vendor delivered vacant possession of the said purchased land 01 bigha 10 katha 10 lechas and accordingly the same was possessing by planting threes like coconut, betlenut, bananas etc. and also constructed temporary eksali for the purpose of watchman/rented, incidentally it may be stated that there is adjacent another plot belonging to the plaintiff which was initially hold by the Sri Harendra Chandra Roy and to ingress and outguess to the said land under dag No. 459, a passage was opened through the suit land and still using for the purpose. 4. . . 5. . . 5. That the plaintiff states that although there is rectification with respect to survey number etc. 4. . . 5. . . 5. That the plaintiff states that although there is rectification with respect to survey number etc. the actual possession over the land belonging to Case No. 455 containing the suit land remained uninterrupted and in continuing possession over the same denying the right, title and interest of the true owners thereof which is with knowledge of the owners and her uninterrupted peaceful possession over the suit land involves an occupation with the intention of excluding the owners as well as other people and the plaintiff exercising some acts of possession by planting different trees, using passage through the suit land which can also be ascertained from the photographs taken at that time and still there was evidence of some dead coconut trees apart from the passage which is still using to ingress and outgress to the land under dag No. 459. The plaintiff craves the leave of the Hon'ble Court to produce these photographs as and when called to do so. As such, it is the intention of the plaintiff to claim exclusive title that makes possession of plaintiff to claim exclusive title that makes possession of plaintiff adverse to the real owners and thereby acquired prescriptive right also by such adverse possession by efflux of time without there being any action of the true owners who now tries to dispossess, i.e. the defendants and the all boundary men know that the plaintiff is owner in respect of the suit land in addition to." 6. A bare reading of the statements, made in paragraph 3 and 6 above, clearly shows that, according to the plaintiff, she has planted trees like Coconut, Betlenut, Bananas, etc., on the suit land and also raised temporary construction ('eksali') thereon for the purpose of being used by watchman or to give the same on rent. It is also stated, in paragraph 3 of the plaint, that a plot of land, adjacent to the suit land, was initially held by one Harendra Chandra Roy and that a passage was kept open through the suit land in order to facilitate ingress to, and exit from, the land of the said Harendra Chandra Roy. 7. It is also stated, in paragraph 3 of the plaint, that a plot of land, adjacent to the suit land, was initially held by one Harendra Chandra Roy and that a passage was kept open through the suit land in order to facilitate ingress to, and exit from, the land of the said Harendra Chandra Roy. 7. Contrary to what was asserted in the plaint, as indicated above, by the plaintiff-opposite party, the photographs, which were placed with the petition seeking appointment of Advocate Commissioner did not reveal existence of any plant or tree, such as Coconut trees, Betlenut tree and/or Banana tree nor did it reveal existence of any temporary construction, raised over the suit land, as had been asserted by the plaintiff-opposite party. Under the circumstances indicated hereinbefore, the learned trial Court ought to have appointed an Advocate Commissioner for making investigation into the matter to find out as to whether the photographs, which the defendants had been relying upon, were the photographs of the suit land and, if the Advocate Commissioner's report were found to be in accord with the case of the present petitioners, then in such circumstances, it would have been for the plaintiff-opposite party to explain as to how the Coconut trees, Betlenut trees and Banana trees as well as the temporary construction, which were claimed to have been raised by her disappeared. It was the duty of the learned Court below to determine if there had been any violation of the direction, which the learned Court had passed, warranting the parties to the suit to maintain, as indicated above, status quo. 8. Because of what have been discussed and pointed out above, this revision succeeds. The impugned order is set aside and the learned Court below is hereby directed to pass appropriate order (s) in the light of the observations made hereinabove by this Court. 9. With the above observations and directions, this Revision Petition shall stand disposed of. No order as to costs.