PEMA CHOMPHEL Vs. CANTONEMENT BOARD AND ANOTHER

JUDGEMENT

(1.) The plaintiffs in Title Suit Nos. 2 (H)/2007 and 13 (H)/2007 pending in the Court of the learned Assistant District Judge at Shillong by the present petitions filed under section 115 of the C.P.C., read with Art. 227 of the Constitution of India have challenged the common judgment and order dated 29.5.2008 passed by the learned Additional District Judge, Shillong in F.A.O. Nos. 6 (H)07 and 7 (H)/07 dismissing the appeals preferred by them against the separate orders, both dated 1. 11.2007 passed by the leaned Assistant District Judge at Shillong, refusing to grant the ad-interim injunction prayed for under Order 39, Rules 1 and 2 read with section 151 of the C.P.C.. while issuing notice to the respondents herein to show cause.

(2.) Since both the petitions are arisen out of the common judgment and order, those are taken up together for consideration, as agreed to by the learned Counsel for the parties.

(3.) The petitioners as plaintiffs instituted Title Suit Nos. 12 (H)/07 and 13 (H)/07 in the Court of the learned Assistant District Judge at Shillong praying for a decree that the plaintiffs' dwelling house standing at 45-A-J.B. Cantt has been erected with the required permission and the threatened action of the defendants of demolition is barred under the Cantonment Act, (hereinafter referred to as the Act) as well as the principles of the estoppel, waiver and acquiescence and also for permanent injunction, stating inter alia that they acquired leasehold right over the holding under their possession in the cantonment area from the erstwhile lessees and as per the building plan sanctioned by the defendants- respondents. they constructed the house. It has further been contended that the defendants on 26.9.2000 issued a notice under section 185 of the repealed cantonment Act, 1924 maliciously and with malafide intention to cause loss and harassment and, thereafter, issued another notice on 2.4.2001 under section 256 of the Act and also filed a criminal case under section 184 of the said Act which was, however, dismissed for default on 30.3.2004. It has also been contended that subsequently the plaintiffs preferred appeals before the Principal Director of Defence Estate as provided under section 340 of the Act against the notice issued by the authority for demolition of the unauthorized construction which was, however, dismissed. According to the plaintiffs, another notice dated 23.10.2007 threatening demolition on 5.11.2007 was issued for which the suits have been instituted. The plaintiffs also filed an application under Order 39, Rules I and 2 read with section 151 of the C.P.C. praying for temporary injunction restraining the defendants from demolishing, demanding, destroying or breaking the premises in holding Nos. 45-A-J.B. Cantt in building No. 2. The learned Assistant District Judge vide order dated 1.11.2007. while issuing notice, refused to pass any ad interim injunction, against which F.A.O. Nos. 6 (H)/07 and 7 (H)/07 were preferred, which were dismissed by the learned Additional District Judge at Shillong as aforesaid. Hence. the present petitions.