KAUSALYA BARUA Vs. BRAHMPUTRA CONSTRUCTION LTD

JUDGEMENT

(1.) The Title Suit being T.S. No. 10/04 along with an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, "C.P.C.") being registered as Misc. (J) Case No. 4/04 was instituted by the appellants as plaintiffs against the respondents arraying them as party defendants for a decree of declaration of their right, title and interest as well as possession over the suit land with a further prayer for a decree for cancellation of a Sale Deed No. 9109 dated 1-11-03 which was allegedly executed illegally and fraudulently by the defendants/Respondents Nos. 2 to 13 in favour oi the defendant/respondent No. 1. Initially, the learned trial Court, on the application seeking temporary injunction, issuing notice upon the respondents, passed, as an interim measure, the order of status quo in favour of the appellants on 30-1-04. After the appearance of the parties i.e., the respondents by filing written objection and upon hearing the learned counsel representing both the parties, the learned trial Court by its order dated 15-7-04 dismissed the Misc. Case (J) No. 4/04 holding that the appellants had no prima facie case to go for trial etc. and thereby ad interim order of status quo dated 30-1-04 was vacated.

(2.) In this appeal, the aforesaid order dated 15-7-04 has been challenged solely on the ground of perversity. It is pleaded that the learned trial Court's finding was precisely based on the photocopy of the Jamabandi filed by the appellants observing that since in 'Entry (Cha)' of the Jamabandi showed that Umesh and Balindra sold a total plot of land measuring 7 Bighas 1 Katha 14 Lechas to Bharpur, Jalil Seikh, Bhehua, Khalisa Seikh and Asan All, without prejudice to the merit of the main suit, it was held that if the appellants had have any land in their share, the same was to the extent of only 2 Katha 3i Lechas when in fact such 'Entry '(Cha)' of the Jamabandi does not indicate anywhere any such area of the land measuring 7 Bighas 1 Katha 14 Lechas so as to make the shares of the appellants to the extent of 2 Kathas 3 Lechas save and except the remark that 3 Bighas of land under New Dag No. 571 was mutated in the names of Bhehue Seikh and Khalisa Sheikh along with Umesh, Balindra and Chandra when 1 Bigha 1 Katha 14 Lechas under Dag No. 571 in the name of Hasan Ali.

(3.) Heard Mr. S. Medhi, learned counsel for the appellants and Mr. S. Ali, learned counsel appearing for the respondents.