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2018 DIGILAW 78 (MEG)

Drainsing Kharpan v. Estel Kharpan

2018-11-13

S.R.SEN

body2018
JUDGMENT : S.R. Sen, J. 1. Heard Mr. S.C. Chakrawarty, learned Sr. counsel assisted by Ms. R. Sumer, learned counsel appearing on behalf of the petitioners as well as Mr. S. Wahlang, learned counsel appearing on behalf of the respondent. 2. The brief fact of the petitioner's case in a nutshell is that: "In the year 2014, the respondent above-named instituted the Title Suit No. 10 of 2014, in the District Council Court, at Shillong, against the petitioners, praying for a judgment and decree for declaring her right, title and interest on the suit land by declaring that the petitioners' actions by way of encroaching, interfering and trying to usurp the suit land was illegal, invalid and inconsistent with the law, for permanent injunction against the petitioners and other reliefs. The respondent also filed the Miscellaneous Case No. 10 of 2014 by way of an application under Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure, 1908, praying for an order of temporary injunctions against the petitioners to restrain them from the suit land or from doing anything there pending disposal of the main Title Suit No. 10 of 2014 and also for an adinterim injunction. Upon motion of the said Title Suit No. 10 of 2014 summons were issues and in the said Miscellaneous Case No. 10 of 2014 an ex-parte order dated 23.07.2014 was made granting an ad-interim temporary injunction restraining the petitioners from the suit land and due notices were served on the petitioners. The petitioners received summons and the notices in the above-mentioned cases and the petitioners duly entered their appearances and filed their written statement and show cause respectively and after the petitioners contested the cases, the Honourable Court of the Presiding Officer, Subordinate District Council Court, Shillong was pleased to finally hear the parties in the said Miscellaneous Case No. 10 of 2014 and thereafter was further pleased to make final order dated 10.11.2014 in the said Miscellaneous Case whereby the said ad-interim injunction granted by ex-parte order dated 23.07.2014 was vacated. The respondent assailed the said final order dated 10.11.2014 by filing the Miscellaneous Civil Appeal No. 14 of 2014 in the Court of the Judge, District Council Court, at Shillong. The respondent assailed the said final order dated 10.11.2014 by filing the Miscellaneous Civil Appeal No. 14 of 2014 in the Court of the Judge, District Council Court, at Shillong. Upon hearing the parties in the said Miscellaneous Civil Appeal No. 14 of 2014, and after the lapse of a period of about two years the Honourable Court of the Judge, District Council Court, Shillong has been pleased to make the impugned order dated 01.05.2017 therein, whereby the said final order dated 10.11.2014 of the Honourable Subordinate District Council Court in the said Miscellaneous Case No. 10 of 2014 has been set aside and the previous ex-parte order dated 23.07.2014 therein has been restored. Consequent upon the making of the said impugned order dated 01.05.2017, the petitioners are now restrained from illegally encroaching or trespassing and usurping or doing anything in the said suit land, pending disposal of the main Title Suit No. 10 of 2014. However, while the said Miscellaneous Civil Appeal No. 14 of 2014 was pending for orders in the Court of the Judge, District Council Court, at Shillong the respondent above-named instituted the Title Suit No. 3 of 2016 in the Court of the Judge, District Council Court, at Shillong which has been endorsed for trial to the Honourable Presiding Officer, Subordinate District Council Court, Shillong arraigning many of the petitioners and for their eviction from the suit land. The plaint in the said Title Suit No. 3 of 2016 reveals that the petitioners above-named have been in continuous and un-interfered possession of their respective plots within the suit land for many years and decades. Being highly aggrieved by the said impugned order dated 01.05.2017 of the Honourable Court of the Judge, District Council Court, Shillong in the Miscellaneous Civil Appeal No. 14 of 2014, the petitioners are filing this petition assailing the said impugned order." 3. The learned Sr. counsel appearing on behalf of the petitioners submits that initially the plaintiff/respondent filed a Title Suit No. 10 of 2014 before the Judge, District Council Court and the Presiding Officer, Subordinate District Council Court, Shillong in Misc. Case No. 10 of 2014 passed an ex-parte injunction order dated 23.07.2014. Subsequently, the Presiding Officer, Subordinate District Council Court, Shillong after hearing both the parties passed the final order dated 10.11.2014 whereby, the said ex-parte injunction order dated 23.07.2014 was vacated. Case No. 10 of 2014 passed an ex-parte injunction order dated 23.07.2014. Subsequently, the Presiding Officer, Subordinate District Council Court, Shillong after hearing both the parties passed the final order dated 10.11.2014 whereby, the said ex-parte injunction order dated 23.07.2014 was vacated. The plaintiff/respondent being aggrieved by the impugned order dated 10.11.2014 moved an appeal before the Judge, District Council Court, Shillong who after hearing both the parties restored the injunction order dated 23.07.2014 and observed that since there is no description of the boundary in the written statement, it will be difficult for the Court to adjudicate the matter. The learned Sr. counsel for the petitioners also submits that during the pendency of the said Title Suit No. 10 of 2014 the plaintiff/respondent filed an eviction suit bearing Title Suit No. 3 of 2016 against the defendant/petitioner in this case. 4. On the other hand, the learned counsel for the respondent submits that it is a fact that the Title Suit No. 10 of 2014 was filed before the Judge, District Council Court and it is also a fact that no boundary was specified in the written statement, as such the Court finds it difficult to adjudicate the matter, hence passed the judgment dated 01.05.2017 in Misc. Civil Appeal No. 14 of 2014. The learned counsel for the respondent also further submits that eviction suit was withdrawn subsequently. He also further contended that before completion of the trial and without recording any evidence, the Court came to the conclusion that there is a prima facie title in favour of the defendant/petitioner. 5. After hearing the submissions advanced by the learned counsel for the parties as quoted above, I have perused the impugned judgment dated 01.05.2017 passed in Misc. Civil Appeal No. 14 of 2014, wherein it is noticed that the learned Appellate Court made an observation and the same is reproduced herein below for ready reference: "As appeared from the case records, both parties have supported their claims with documents, but the only difference is that the Appellant/Plaintiff have specified the boundaries of the land claimed by her in her plaint, whereas the defendants failed to specify the boundaries of the lands claimed by them. Hence, I am of the considered view that the land of the Respondents/Defendants may be some where outside the land of the Appellant/Plaintiff. Hence, I am of the considered view that the land of the Respondents/Defendants may be some where outside the land of the Appellant/Plaintiff. However, this is a mere presumption but the same may be clearly understood only after evidence is adduced." The learned Appellate Court also observed that: "(1) Prima facie case:- Both parties have supported their respective claims with documents. However, as appeared from the pleadings of both parties, the Respondents/Defendants did not specify the boundaries of the land claimed by them in their joint Written Statement, hence, I am of the view that it shall be very difficult on the part of the Court to give a proper adjudication of the suit in the absence of the boundaries. Whereas, the Appellant/Plaintiff have specifically mentioned the boundaries of the land claimed by her in her plaint. Hence, I am of the view that besides her claim has been supported with documents, specific boundaries of the land claimed by her has also been given in her plaint, hence, I am of the considered view that adjudication of the case is more easier than the one who have no boundaries. Therefore, in view of my above observations, I am of the considered opinion that the Appellant/Petitioner has got prima facie case in the suit." 6. After perusal of the observations made by the learned Appellate Court, it is clear that the Court has taken a negative view just because the suit premises are not being mentioned in the written statement, which is not a correct position of law. Generally, the suit premises are to be proved by the plaintiff/respondent not by the defendant/petitioner. Therefore, I do not find any reason to agree with the decision of the learned Appellate Court and accordingly, the impugned judgment dated 01.05.2017 is hereby set aside. Further, I also do not agree with the District Council Court who without recording any evidence came to the conclusion that there is a prima facie case or prima facie title over the suit land. Therefore, the impugned order dated 10.11.2014 passed in Misc. Case No. 10 of 2014 is also set aside. 7. Let the matter be placed before the learned Trial Court and thereafter, to decide the matter after taking the evidence. 8. Therefore, the impugned order dated 10.11.2014 passed in Misc. Case No. 10 of 2014 is also set aside. 7. Let the matter be placed before the learned Trial Court and thereafter, to decide the matter after taking the evidence. 8. There is an interim protection; in the meantime, both the parties are directed not to disturb each other until and unless the matter has been taken up by the learned Trial Court and to pass necessary order after hearing both the parties. I also further mentioned that if any question comes with regard to injunction, the learned Court below should not be influenced by the order of this Court and to take appropriate steps independently in accordance with the facts, circumstances and law. 9. With this observation and direction the instant petition is allowed and stands disposed of.