AZAD ALI Vs. HOUSEFED & OTHERS

JUDGEMENT

(1.) This appeal is by the plaintiff against the order dated 3.1.91 passed in Misc. (J) Case No. 22/90 by the learned Asstt. District Judge No. 2, Gauhati. By the said order, the application filed by the plaintiff for injunction under Order 39 Rule 1 and 2 read with Sec. 151 C.P.C. was rejected as the plaintiff-petitioner was found absent on that date.

(2.) The plaintiff filed the suit, namely, T.S. No. 14 of 1990 before the above court impleading Housefed which is a State Level Cooperative Society with the object of providing houses to the houseless persons and three other persons as defendants. According to plaintiff he is a cultivator by profession and an area of 10-Bs and odd covered by Dag No. 92, Patta No. 36 of village Notbam, Mouaz-Beltola, Gauhati was in his possession since childhood and prior to that it was in occupation of his father Sri Nizamat Ali. It has been alleged in the plaint that they are cultivating the land for last 20 years without interruption from anybody and therefore, has acquired right, title and interest over the land. According to plaintiff the patta of the land is in the name of Late Bishnu Ram Medhi, but at no point of time it was in his possession. Plaintiff has alleged that on 28.2.90 some employees of Housefed, defendant No. 1 went to the land and measured the same and on being asked by the plaintiff he was informed that there was an agreement for sale of the land by defendant No. 1 from defendant Nos 3 & 4 being heirs of late Bishnu Ram Medhi. The plaintiff was also informed that defendant No. 2 was a tenant and his name was duly recorded in the Khatian i.e. the revenue record and necessary arrangement for surrender of his tenancy right was being made. According to the plaintiff, the action of the defendants is illegal and defendant No. 1 has no right to interfere with the possession of the plaintiff on the alleged agreement for sale and that in the khatian, the name of the defendant No. 2 was illegally mutated as at no point of time he was in possession of the land. As the action of the defendants has clouded the right, title and interest of the plaintiff the suit was filed with a prayer for injunction. In the suit, it was prayed for a decree for declaration of right, title and interest and confirmation of possession and also for permanent injunction.

(3.) Before the learned trial court in the petition for injunction under Order 39 Rule 1 and 2 C.P.C., it was further pleaded that the plaintiff would suffer irreparable loss and injury if injunction was not granted. An objection was filed by defendant No. 1 and a separate objection was also filed by defendant Nos. 3 and 4. It may be stated that ex parte injunction was granted on 7.3.90 directing the defendant-opp. parties to maintain status-quo which was vacated by the impugned order. According to defendant No. 1, after defendant No. 2 surrendered his right of possession to the pattadars, namely, defendant Nos. 3 and 4, defendant No. 1 purchased the suit land from defendant Nos. 3 and 4 with delivery of possession and a registered sale deed was duly executed. It is the case of the defendant No. 1 that the possession of the land is with the defendant No. 1 and the plaintiff was trying to disposses and thereby hampering the development activities on the suit land by the defendant No. 1. In the counter filed before this court by defendant No. 1, it has been stated that the sale deed was executed by defendant Nos. 2 and 4 on 7.8.89 for valuable consideration of Rs. 9,16,200.00 with delivery of physical possession and since the date of purchase the defendant No. 1 is in possession of the suit land. After purchase the defendant No. 1 improved and developed the entire land by filling of earth, constructing approach road, erecting boundary wall, installing hand pump, eracting site office, labour camp etc. Defendant No. 1 has taken up a scheme for construction of 260 Nos of houses for lower income group and middle income group under Flat Ownership Co-operative Scheme which would cost Rs. 4 crores financed and technically supported by the Housing and Urban Development Corporation which is a Government of India Undertaking. It has also been stated that defendant No. 1 has already invested a sum of Rs. 40 lakhs towards development and for above constructions and as many as 9 contractors have been engaged to undertake the work. According to defendant No. 1, the plaintiff was never in possession of the suit land, but by obtaining status quo order is trying to occupy the suit land forcibly.