HOBIBOR RAHMAN Vs. IBRAHIM ALI

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India challenging the concurrent findings of the learned courts below vis -a -vis the prayer for injunction made by the present petitioner.

(2.) The present petitioners, as plaintiffs, instituted title suit being Title Suit No. 20/2009 in the court of learned Munsiff at Bilasipara stating that the suit land originally belonged to their predecessor Asmot Ali. Upon his death, the property devolved on them and the suit property were given to them by Asmot Ali during his life time by way of family arrangement. But subsequently the defendant No. 1 claimed to be in possession of a registered sale deed No. 1394 dated 13.07.1995 whereby he claimed that he had purchased the land from the original owner. He also staked claim of title with respect to the suit land on the basis of a gift deed dated 26.12.2001. According to the plaintiffs, both the deeds are fraudulent and void and were never executed by Asmot Ali. According to the plaintiffs, they are in possession of the suit land and in no point of time was the same handed over to the defendant No. 1 who really resides away from the suit land.

(3.) In the aforesaid suit, the plaintiff also filed an application under Order XXXIX Rule 1 and 2 of the Code of civil Procedure praying for temporary and ad - interim injunction during pendency of the suit. The learned trial court registered the aforesaid application as Misc. Case No. 22/2009 and issued notice to the opposite parties. After hearing objections, the learned trial court by his judgment and order dated 03.02.2010 rejected the prayer for injunction holding that the plaintiff does not have any prima facie case. He does not have a balance of convenience in his favour and that there is no chance of irreparable loss and injury in case injunction is refused. Aggrieved, the plaintiffs preferred Misc. Appeal No. 2/2010 in the court of learned Civil Judge at Dhubri. The learned appellate court by his judgment dated 18.11.2011 dismissed the appeal holding that the defendant No. 1 must be in possession of the suit land as there is mutation in his favour with respect to the suit land. Accordingly, the findings of the learned trial court were upheld and appeal was dismissed. These two judgments and orders have been brought under challenge in the present civil revision petition.