KAILASH KALITA Vs. SANJIB SHARMA

JUDGEMENT

(1.) I have heard Mr. S. Ali, learned counsel for the petitioner, and Mr. S. Medhi, learned counsel, appearing on behalf of the respon- dents.

(2.) The material facts and various stages which have led to the filing of the present writ petition, may, in brief, be set out as follows (i) The respondents herein instituted, on 29.01.2004, Title Suit No. 25/2004 in the Court of the Civil Judge, (Junior Division Guwahati, the case of the plaintiffs being, in brief, thus: The plaintiffs have inherited a plot of land, which is described in Schedule 'A' to the plaint. Late Ajit Chandra Deka, prede- cessor-in-interest of the proforma defendants, had purchased a plot of land adjacent to the said land of Schedule' A'. The Government, however, for the purpose of extension of express high way, acquired the land, which late Ajit Chandra Deka (since deceased) had purchased. Notwithstanding such acquisition, the proforma defendants, in the year 1994, illegally took over possession of a portion of me plaintiffs said land described in Schedule 'A' aforementioned, and illegally constructed thereon one Assam-type house, the land from which the plaintiffs were so dispossessed having been described in Schedule 'B' to the plaint. In course of time, the proforma defendants sold the land of Schedule 'B' aforementioned to the defendant No. 1, namely, Kailash Kalita, i.e. the present writ petitioner. Thereafter, in the year 1998, the defendant No. 2 namely, S.C. Mazumdar, illegally took over possession of a portion of the remaining land of Schedule 'A' aforementioned, the portion of the land, which the said S.C. Mazumdar so took over possession haying been described in Schedule 'C' to the plaint. As a result of the dispossession of the plaintiffs from the land of Schedule 'B' and 'C', the plaintiffs, (i.e., the respondents herein) have remained in possession of a portion of the land of Schedule 'A', the portion of the land, which has, so remained, in possession of the plaintiffs (i.e., the respondents herein) having been described in Schedule 'D' to the plaint. The defendant No. 1 (i.e., the writ petitioner) has, now, been trying to dispossess the plaintiffs from the land of Schedule 'D' too and apprehending such dispossession, the plaintiffs had lodged complaint to the police. The plaintiffs, therefore, sought for, inter alia, decree of declaration of their rights, title and interest over the entire land of Schedule 'A', recovery of possession of the plots of land, described in Schedule 'B' and 'C', and confirmation of their possession over the land described in Schedule 'D', wherefrom defendant No. 1, (i.e., the petitioner herein) was, according to the plaintiffs-respondents, trying to dispossess the plaintiffs, and also for permanent injunction. (ii) On 09.02.2004, the defendant No. 1 of Title Suit No. 25/2004 aforementioned instituted Title Suit No. 30/2004 in the Court of the Civil Judge (Sr. Division) No. 2, Kamrup, Guwahati. This suit is a suit under Section 6 of the Specific Relief Act seeking recovery of possession of the suit land, his case being, briefly stated, thus: The plaintiff (i.e., the writ petitioner) had purchased the suit land by a registered sale deed, dated 14.07.2003, from the successors-in-interest of late Ajit Chandra Deka and obtained possession thereof and, having so obtained possession, constructed thereon not only a boundary wall, but also a shed with CI sheet- roofing in order to use the same for storing building materials for the purpose of construction of a house thereon and appointed a watchman to look after the said property; but on 23.01.2004, the defendants, (i.e., the plaintiffs of Title Suit No. 25/2004, who are respondents in the present writ petition),.all of a sudden, trespassed into the said land by breaking open the lock of the gate and hastily constructed a temporary house thereon with CI sheet-roofing and collected building materials for construction of a permanent building thereon. (iii) In short, thus, while the respondents herein, in Title Suit No. 25/2004, claimed to be in possession of the land of Schedule 'D' aforementioned having inherited the same from their predecessor-in-interest, the present petitioner's case, as indicated above, in Title Suit No. 30/2004, was that the respondents herein had taken over the possession of the land of Schedule ' D', on 23.01.2004, by unlawfully and forcibly evicting the present petitioner therefrom. In the Court of learned Civil Judge (Sr. Division) No. 2, the respondents herein, who were defendants in Title Suit No. 30/2004 aforementioned, filed a petition seeking stay of the further proceedings of the Title Suit No. 30/2004 on the ground that on the same subject-matter, the respondents herein (i.e., the defendants in Title Suit No. 30/2004) had already instituted Title Suit No. 25/2004 aforementioned and the decision, which may be rendered in the previous suit, i.e., Title Suit No. 25/2004, would, ultimately, settle the dispute between the parties and the decree, if any, granted therein, would operate as res judicata for the subsequent suit, which the petitioner herein had instituted.

(3.) Upon hearing the learned counsel for the parties, the learned Civil Judge (Sr. Division) No.2 passed an order on 01.12.2004, staying the further proceedings of Title Suit No. 30/2004 purportedly in exercise of powers; under Section 10 of the Civil Procedure Cade. It is this order, which stands impugned in the present writ petition.