AAINUDDIN DEWAN Vs. HARAN ALI

JUDGEMENT

(1.) This revision raises an important question of law. Before we go to that aspect of the matter, let us have a look at the facts of this case.

(2.) The petitioner herein filed title suit being TS 440/80 in the court of Munsiff No. 1 at Dhubri against the opposite parties for a declaration of right, title and interest of the suit land, measuring 2 bighas for perpetual injunction restraining the defendants from dispossesing the petitioner and also for cancellation of two sale deeds pertaining to the suit land execute on 13.4.79 executed in favour (of opposite party No. 3 and dated 21.6.80 executed in favour of opposite party No. 1. On 13.6.83 the title suit was dismissed by the learned Munsiff at Dhubri. The petitioner preferred an appeal being TA 3 5/83 before the Assistant District Judge at Dhubri and that appeal was allowed by the learned Judge by judgment dated 16.3.85 and the suit was decreed. A second appeal being SA 95/ 85 was filed by the opposite parties before this court against the judgment and decree dated 16.3.85 and this court allowed the second appeal and remanded the matter to the learned Munsiff at Dhubari with a direction to allow the petitioner to prove the original sale deed contended to be executed in his favour in accordance with law. The learned Munsiff on 21.7.93 dismissed the suit after allowing the plaintiff to prove the sale deed as per the direction given by the High Court. He came to the finding that the sale deed proved by the petitioner was a forged and collusive one. The petitioner preferred title appeal being TA 46/93 in the court of Assistant District Judge at Dhubri and on 20.12.93 the learned judge allowed the appeal and decreed the suit of the petitioner and restrained the opposite parties from dispossessing the petitioner from the suit land by granting a perpetual injunction. After disposal of the appeal, an application was filed before the learned Assistant District Judge under Order 39 Rule 2 read with Section 94 and 151 of CPC praying for issuance of a mandatory injunction directing the opposite parties to remove all construction from the suit land to deliver vacant possessicon thereof to the petitioner. This application was registered as Misc(J) Case No. 5/94. on 6.4.94 the learned Judge allowed the application and the learned Judge directed the opposite parties to remove all constructions over the suit land and to deliver the vacant possession thereof to the petitioner within 30 days from the date of the order. Opposite parties filed Misc Appeal No. 7/95 in the court of the: District Judge against the order dated 6.4.94. That appeal was allowed by the learned District Judge vide his judgment dated 14.9.95. Hence this revision.

(3.) I have heard Mr. P K Barua, learned counsel for petitioner, Mr B K Goswami, learned Senior Counsel appeared as Amicus Curiae and also Mr A K Das, learned counsel for respondents.