JUDGMENT : DEVASHIS BARUAH, J. 1. Heard Mr. S.D. Purkayastha, the learned counsel appearing on behalf of the Appellants and Mr. S. Biswas, the learned counsel appearing on behalf of the Respondent. 2. This is an appeal under Order XLIII Rule 1(r) challenging the order dated 06.12.2021 passed in Misc. (J) Case No. 58/2021 arising out of Title Suit No. 24/2021. 3. It is relevant herein to mention that alongwith the instant appeal, there is also an application filed under Order XXXIX Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908, for grant of temporary injunction. The said application has been registered and numbered as I.A.(Civil) No. 2/2021. It is pertinent herein to mention that in the said application seeking injunction, the appellant therein sought for an injunction to restrain the Opposite Party and his men and agents from further continuing the illegal and unauthorized construction over the land described in Schedule-II as well as from restraining the opposite party from alienating the Schedule-II land in favour any third party. 4. For the purpose of adjudication of the instant appeal, the parties herein are in same status as they stood before the Trial Court. The three plaintiffs in the suit claims to be the successor in interest of one Late Jogesh Chandra Das Gupta. It has been mentioned that Late Jogesh Chandra Das Gupta during his lifetime donated his land to his wife Nirupama Das Gupta and accordingly her name was mutated in the suit patta. Later Nirupama Das Gupta died leaving eight sons i.e. the predecessor of the Plaintiff Nos. 1, 2 and 3 and their five brothers who became the owners over 25 Bighas 11 Kathas 10 Chataks of land in the suit patta. On the basis of the partition, the plaintiffs claimed to be the owner over 3 Kathas of land over Dag No. 118 of the suit patta as described in the schedule by amicable arrangement with other co-sharers. 5. It is the further case of the Plaintiffs that one Late Mathura Mohan Das alias Mathura Mohan Mahaisa Das during his lifetime took settlement of 3 Kathas of land in Dag No. 118 of 2nd R.S. Patta No. 37 from Jogesh Chandra Das Gupta, the predecessor of the above plaintiffs about 60 years back. 5. It is the further case of the Plaintiffs that one Late Mathura Mohan Das alias Mathura Mohan Mahaisa Das during his lifetime took settlement of 3 Kathas of land in Dag No. 118 of 2nd R.S. Patta No. 37 from Jogesh Chandra Das Gupta, the predecessor of the above plaintiffs about 60 years back. The said Mathura Mohan Das was in possession of the above mentioned land as tenant, and he left behind one son namely Mahesh Chandra Das and three daughters namely Smt. Charu Das alias Charu Mazumder, Smt. Anindita Das and Smt. Hiron Bala Das alias Hiron Bala Nath and also the heirs of his deceased son Mahesh Chandra Das namely Mihir Das and two daughters namely Rekha Das and Aparna Das. 6. Subsequent to the death of Mathura Mohan Das, his son Mahesh Chandra Das was in occupation of the property mentioned in the Schedule. On 25.11.2019 the said Mahesh Chandra Das surrendered the aforesaid bhit land to Plaintiff No. 1 by taking Rs. 80,000/- and accordingly executed a Swaranlipi in favour of the Plaintiff No. 1 in presence of witnesses. Moreover, on delivery of Khas possession, the said Mahesh Chandra Das had also executed a Deed of Istafanama (Deed of Release) in favour of the plaintiff No. 1 at Pailapool on the same day and the same was duly notarized thereafter at Silchar and since then the property is in possession of the plaintiffs. It is the further case of the plaintiffs that in the last week of November, 2020 the defendant started publicizing in the locality that the suit property belongs to him as he purchased the same. The Plaintiffs thereafter made enquiries and could locate a Sale Deed executed by the heirs of Mathura Mohan Das and the heirs of Mahesh Chandra das on 05.11.2020 registered before the In-charge Deputy Register, Cachar vide Deed No. 933/879 of 2020 over the lands mentioned in Schedule-II in the plaint. The Plaintiffs thereafter took out the certified copy of the alleged Deed on 18.12.2020 and came to learn for the first time that the defendant purchased the jote right of land measuring 2 Kathas 8 Chataks out of the Schedule-I land alongwith one Assam type house thereon. The Plaintiffs thereafter took out the certified copy of the alleged Deed on 18.12.2020 and came to learn for the first time that the defendant purchased the jote right of land measuring 2 Kathas 8 Chataks out of the Schedule-I land alongwith one Assam type house thereon. On perusal of the said deed, it also revealed that prior to the execution and registration of the sale deed a Bainama Deed was executed with the aforesaid Defendant on 24.02.2020 at a consideration price of Rs. 7,00,000/- and on failure to execute the Sale Deed the alleged purchaser i.e. the defendant filed a suit for Specific Performance of Contract before the Court of Civil Judge No. 1, Silchar vide Title Suit No. 59/2020. Subsequently, a Compromise Petition was filed by the defendant as plaintiff and the vendors as defendants collusively and got the suit compromised on 29.09.2020. Subsequent thereto, in pursuance to the compromise decree the alleged Sale Deed dated 05.11.2020 was got registered. The plaintiff thereafter filed a suit vide Title Suit No. 12/2021 on 12.01.2021 for cancellation of the aforesaid Sale Deed as it was collusively and fraudulently obtained. Subsequent to the filing of Title Suit No. 12/2021, the defendant forcefully dispossessed the plaintiffs from the southern side of the Schedule-I land measuring 2 Kathas 8 Chataks with the help of his agents and certain unknown miscreants in the first week of February, 2021. The said dispossessed land has been more specifically described in Schedule-II to the plaint. It was under such circumstances the instant suit was filed seeking for a decree declaring right, title and interest over the Schedule-II land which is the part of the Schedule-I land; for recovery of khas possession over the Schedule-II land by removing the defendant and his men and agents and by dismantling all unauthorized and illegal constructions, structures and other impediments over the said land; for permanent injunction restraining the defendant and his men and agents from further continuing with the illegal and unauthorized constructions works over the lands mentioned in the Schedule-II and/or alienating the Schedule-II land in favour of any other third party. 7. 7. Alongwith the said suit, an injunction application was also filed with the same contents and a prayer that the defendant in the suit, his men, agents should be restrained by temporary injunction from further continuing with the illegal and unauthorized construction works over the lands mentioned in Schedule-II and/or restraining the Opposite Party/Defendant from alienating the Schedule-II land in favour of other third party till the disposal of the suit. 8. The defendant filed his written statement. In the said written statement, various preliminary objections were taken including that the suit was barred by the principles of res-judicata on the ground that in the previous instituted suit between the predecessor in interest of the plaintiffs and the predecessor in interest of the defendant i.e. Title Suit No. 166/1965, Late Jogesh Chandra Das Gupta was held to be not the owner of the suit land. In paragraph No. 16 of the said written statement, it was stated that the predecessor in interest of the defendant Mathura Mohan Das never took settlement of the suit land from the predecessor in interest of the plaintiffs Late Jogesh Chandra Das Gupta and such facts is apparent from the judgment passed by the Court of Sadar Munsiff Silchar in Title Suit No. 166/1965. In the written statement, though the statements of the plaintiffs have been denied, but one thing relevant to take note which is conspicuous from the written statement that there is no mention whatsoever as to from whom Mathura Mohan Das had taken the land on lease. 9. In the written objection so filed to the Misc. Application seeking temporary injunction, the maintainability of the suit was raised. In Paragraph No. 15, it has been mentioned that after purchase of the leasehold right, the Opposite Party i.e. the Respondent herein had started construction of a multistoried building on the said land by demolishing the existing houses and in the meantime constructed the considerable portion of the said building. The Respondent herein further stated in Paragraph No. 20 that the Respondent had constructed considerable portion of the residential building on the said land by incurring huge amount of money and in the meantime accumulated huge quantity of construction materials such as stone, sand, bricks, cement, rod, etc. The Respondent herein further stated in Paragraph No. 20 that the Respondent had constructed considerable portion of the residential building on the said land by incurring huge amount of money and in the meantime accumulated huge quantity of construction materials such as stone, sand, bricks, cement, rod, etc. and in the event of passing any order of injunction all those construction materials would be damaged and the cost of construction would be accumulate and inflate and the Opposite Party will suffer irreparable loss and injury. 10. The learned Court below vide an order dated 06.12.2021 after taking into account the pleadings and the materials on record came to a finding that the Opposite Party i.e. the Respondent herein was a bona fide purchaser of the suit land and consequently the hardship or inconvenience which is likely to be caused to the Opposite Party by granting the temporary injunction would be greater than which is likely to be caused by refusing it. Under such circumstances the Court came to a finding that the balance of convenience therefore was in favour of the Opposite Party as he has made substantial progress in undertaking the construction. On the question of irreparable loss or injury, the Court below came to a finding that the Petitioner would not face any irreparable loss, harm or injury because in the event of their success in the main suit, they could always get the Opposite Party’s purported construction over the suit land demolished at the latter’s cost. As regards the prima-facie case, the Court below came to a finding that there was prima-facie case for going to trial but on account of the absence of the other two principles i.e. balance of convenience and irreparable loss, harm and injury, the Court below rejected the injunction application. It is under such circumstances that the present appeal has been filed. 11. I have heard the learned counsels for the parties and also perused the materials on record. It is under such circumstances that the present appeal has been filed. 11. I have heard the learned counsels for the parties and also perused the materials on record. From the narration of the pleadings as mentioned hereinabove, it would be apparent that the plaintiffs have a prima-facie case going for trial inasmuch as the plaintiffs claim on the basis of Swaranlipi dated 25.11.2019, that Late Mahesh Chandra Das has surrendered the land in favour of the Plaintiff No. 1 and by the Deed of Istafanama in favour of the Plaintiff No. 1, the Plaintiff No. 1 was delivered the Khas possession of the land. The basic case of the Plaintiffs in the instant suit was that upon coming to learn about the Deed of Sale dated 05.11.2020 bearing Deed No. 933/879 of 2020 have to put to challenge the said Deed of Sale in Title Suit No. 12/2021. It was during the pendency of the said suit that the Plaintiffs have been dispossessed by the defendant. On the other hand, the defendant’s case is that in a suit i.e. Title Suit No. 166/1965, it has been held that the plaintiffs predecessor Jogesh Chandra Das Gupta could not proved his title and consequently, the plaintiffs did not have a valid title over the said Schedule-I land. However, it is to be noted that Mahesh Chandra Das or his predecessor Mathura Mohan Das has not claimed ownership of the land at any point of time. What has been claimed is the right of a jote holder i.e. the leasehold right. It is however, conspicuously absent from pleadings as to from whom the predecessor in interest of the defendant or the defendant claims leasehold right. The right to construct over a plot of land is a valuable right which can be exercised either by the owner or the land holder or by any person who has been specifically authorized by law to do so. If this Court takes into consideration the provisions of Section 108(P) of the Transfer of Property Act, 1882 and the admitted case of the defendant that his claim is only to be a lessee, the lessee cannot carry out any permanent structure on property without the lessar’s consent. If this Court takes into consideration the provisions of Section 108(P) of the Transfer of Property Act, 1882 and the admitted case of the defendant that his claim is only to be a lessee, the lessee cannot carry out any permanent structure on property without the lessar’s consent. Under such circumstances, when it is conspicuously absent as to who is the landlord of the defendant, the right to carry out the construction if allowed at this stage, would lead to unnecessary complications and also would be in clear violation to the provisions of Section 108(P) of the Transfer of Property Act, 1882. Under such circumstances, the plaintiffs had a prima-facie case for grant of an injunction. 12. The next question comes is as to whether there was a balance of convenience for the purpose of grant of injunction. A perusal of the Trial Court’s order would show that there was balance of convenience in favour of not granting an injunction taking into account that the Opposite Party i.e. Respondent herein was a bona fide purchaser of the suit land. Surprisingly, the Court below failed to take into consideration that the purchase made vide the Deed of Sale bearing Deed No. 933/879 of 2020 was a purchase of leasehold right and was not a Deed of Sale purchasing right, title and interest over the suit land. This fundamental aspect of the matter having not been taken into consideration, the Court below grossly erred in arriving at the finding as regards the balance of convenience. 13. It is also relevant to take note of that the Court below while taking into consideration the balance and convenience, had also taken into consideration that the Opposite Party i.e. the Respondent herein had made substantial progress in undertaking the construction. On a specific query being made to the learned counsels for the parties as to whether the Court below had issued a commission in terms with Order XXXIX Rule 7 of the Code for making local inspection. The learned counsel for the parties submits that there was no local inspection order passed by the Court below. Under such circumstances, it is not understandable on what basis the Court below had come to a finding that there was substantial progress in construction made by the Opposite Party. The learned counsel for the parties submits that there was no local inspection order passed by the Court below. Under such circumstances, it is not understandable on what basis the Court below had come to a finding that there was substantial progress in construction made by the Opposite Party. Further to that, it is also relevant to take note of that there was no materials on record placed before the Court below to show that there was any construction so carried out as well as documents/evidence of purchase of construction materials. Without such materials brought on record, the Court could not have come into finding that there was a balance of convenience in not granting an injunction. 14. Now let this Court take into consideration the third aspect of the matter as to whether there would be irreparable loss, harm and injury. In the suit the specific case of the plaintiffs is that during the pendency of the Title Suit No. 12/2021, in the month of February, 2021 the defendant has forcefully dispossessed the plaintiffs over the suit land which the plaintiffs were possessing pursuant to the surrender of possession made by Late Mahesh Chandra Das. On the other hand, the defendant’s case is that they were handed over by the successor in interest of Mathura Mohan Das pursuant to the Deed of Sale being executed on 05.11.2020. The Court below held that there would not be any irreparable injury inasmuch as in the event the plaintiffs succeeds in the suit, they could always get the purported construction over the suit land demolished at the cost of the defendant. When the very right of the defendant to construct is an issue pending before the Court and taking into account the suit was filed immediately after the dispossession and there being no materials placed on record to the effect that the defendant had spent huge amount of money on the construction, the Court below ought to have passed an injunction stopping such construction if so made. It would therefore, be seen that the judgment and order dated 06.12.2021 passed in Misc. (J) Case No. 58/2021 on the face of it is arbitrary, illegal, irrational as well as also violates the well established principles for grant of any injunction. It would therefore, be seen that the judgment and order dated 06.12.2021 passed in Misc. (J) Case No. 58/2021 on the face of it is arbitrary, illegal, irrational as well as also violates the well established principles for grant of any injunction. Under such circumstances, this Court interferes with the said order dated 06.12.2021 and passes an injunction order directing the parties to maintain status quo as regards the construction over the Schedule-II land as well as also title and possession in respect to the said land till the disposal of the suit. 15. The observations made herein are made specifically for the purpose of deciding the entitlement of the Appellants as regards the injunction and under no circumstances the observations made hereinabove shall affect the final adjudications of the suit. 16. With above observations and directions, the instant appeal stands dispose of.