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Kamakhya Mishra @ Kamakhya Michir & Others v/s Ram Avatar Bhar & Others

    CRP 106 of 2018

    Decided On, 17 November 2021

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

    For the Petitioner: S. Chauhan, Advocate. For the Respondent: S.K. Chakraborty, Advocate.



Judgment Text

Judgment & Order (Cav)

1. Heard Mr. B. Pushilal, learned counsel appearing for the petitioners and Mr. P.K. Roy, learned counsel appearing on behalf of the respondents.

2. This is an application under Article 227 of the Constitution of India challenging the judgment and order dated 26.04.2018 in Misc. Appeal No.22/2017 by the Court of the Civil Judge, Karimganj, whereby the order of injunction directing maintenance of status quo passed by the Munsiff No.1, Karimganj on 07.12.2017 in Misc. Case No.108/2017 arising out of Title Suit No.132/2017 was interfered with on the ground that the suit was not maintainable in view of the provisions of Order XXI Rule 101 and consequently the plaintiffs did not have a prima facie case for grant of an injunction either in the way of status quo or otherwise.

3. The instant proceedings raises a very important question of law as to whether a suit is maintainable seeking right, title, interest and permanent injunction in respect to a judgment and decree having been passed pertaining to an immovable property whereby the right, title and interest, confirmation of possession and permanent injunction has been issued. The question of law assumes importance in view of the amendment brought to the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976, whereby the provisions of Order XXI Rule 97 to 106 have been substantially amended whereby it is no longer required to file a separate suit seeking right, title and interest as was permitted under the unamended Rule 103 of Order XXI which had been substituted by the new Rule 101 and Rule 103 of Order XXI whereupon all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Executing Court and not by way of a separate suit. In order to decide the said legal issue it would be relevant herein to take note of the relevant facts which are as here-in-under---

4. The respondent nos.1 to 6 along with their mother one Jagati Bhar instituted a suit being Title Suit No.164/2012 seeking declaration of their right, title and interest in respect to the landed property as described in the Schedule to the Plaint and for confirmation of their possession in respect to the Schedule land of the said plaint. Additionally a permanent injunction was also sought for restraining the defendant from dispossessing the plaintiffs in Title Suit No.164/2012 and also not to create any disturbance in the peaceful possession of the plaintiffs in Title Suit No.164/2012. It is the case of the plaintiffs in Title Suit No.164/2012 that the plaintiffs by right of inheritance have been enjoying the landed property as described in the Schedule to the plaint. The defendant of the suit one Bharat Lal Kurmi (the Defendant Page No.# 4/14 No. 7 in T.S. No. 132/2017) was making illegal attempts to dispossess the plaintiffs from the said landed property described in the Schedule to the plaint for which the said plaintiffs sought for the reliefs as stated herein above. The Court of the Munsiff No.2 at Karimganj vide the judgment and decree dated 30.07.2016 decreed the suit in favour of the plaintiffs of Title Suit No.164/2012 holding inter alia that the said plaintiffs have got landholder right and possession in respect to the land described in the Schedule to the said plaint and the defendant therein was restrained from interfering into possession of the plaintiffs. As it is relevant for the purpose of deciding the instant lis the operative portion of the said judgment is quoted herein below :

"It is hereby decreed that the plaintiffs have got land holder right and possession in respect of the land pertaining to Survey Dag no.117, 118, 133, 134 covered by patta no. 217 and dag no. 135 covered by Patta no.219 under mouza Baksal Tilla, Pargona Pratapgadh to the extent of the land of their predecessor Late Subhog Bhar and Defendant is restrained from interfering into possession of the plaintiffs.

Suit is decreed with cost. Prepare decree accordingly".

5. A perusal of the above judgment and decree shows that is was merely a declaratory decree with permanent injunction. Pursuant thereto the said Bharat Lal Kurmi preferred an appeal being Title Appeal No.22/2016 against the judgment and decree dated 30.07.2016 passed in Title Suit No.164/2012. The said appeal was dismissed vide the judgment and decree dated 18.12.2016 thereby confirming to the judgment and decree of the Trial Court. Thereupon the said Bharat Lal Kurmi preferred a Second Appeal before this Court which have been registered and numbered as RSA 176/2017 and the same have been duly admitted and is pending disposal before this Court. It has also been brought to my attention that this Court vide an order dated 02.06.2017 in I.A.(C) 1800/2017 had stayed the operation of the judgment and decree dated 18.11.2016 passed in Title Appeal No.22/2016 which confirmed the judgment and decree dated 30.07.2016 passed in Title Suit No.164/2012 till disposal of the said Second Appeal. It has also been brought to my attention that prior to the stay granted by this Court in I.A.(C) 1800/2017 arising out of RSA 176/2017, an application for executing the decree passed in Title Suit No.164/2012 confirmed in Title Appeal No.22/2016 was filed on 16.05.2017 which was registered and numbered as Title Execution Case No.3/2017. A perusal of the execution application would go to show that the decree-holders Page No.# 5/14 i.e. respondent Nos.1 to 6 herein sought for implementing the permanent injunction against the Judgement Debtor in the said suit herein thereby restraining the respondent no.7 judgment-debtor and his party men not to dispossess the decree-holder and also not to interfere into the possession of the decree-holders through Nazir help or police help and also to take help of the Circle Officer, R.K. Nagar for locating the decreetal land and for a direction to the judgment-debtor to pay the cost of the suit as well as the cost for execution case. The relief sought for in the said execution application and the mode in which assistance of the Court was sought for being relevant for the purpose of the instant lis is quoted hereinbelow :

10. Reliefs prayed.

It is prayed for implementing the permanent injunction restraining the J.D. and his party men not to dispossess the D.Hs. from their bonafide landed property as described in the schedule below and also not to interfere into the possession of D.Hs. thereon through Nazir and Police help and also to take help of Circle Office, R.K. Nagar for locating the decreetal land and the J.D. is also directed to pay the cost of T.S. No.164 of 2012 amounting to Rs.15,094.00 to the D.Hs. as well as cost of this execution case.

11. Mode in which the assistance of the Court is required.

The D.Hs. pray for implementing the permanent injunction restraining the J.D. and his party men not to dispossess the D.Hs. from their bonafide landed property as described in the schedule below and also not to interfere into the possession of D.Hs. thereon through Nazir and Police help and also to take help of Circle Office, R.K. Nagar for locating the decreetal land and the J.D. is also directed to pay the cost of T.S. No.164 of 2012 amounting to Rs.15,094.00 to the D.Hs. as well as cost of this execution case."

6. The petitioners herein claims to be the owners and in possession of the plot of land as described in the Schedule to the plaint in Title Suit No.132/2017 by virtue of the registered Sale Deed No.5790 dated 27.07.1953 and the registered Sale Deed No.1767 dated 31.05.1956. The petitioners claim that on 07.05.2017 it had come to the knowledge of the petitioners that the respondents herein taking advantage of the judgment and decree passed in Title Suit No.164/2012 and the confirmation of the said judgment and decree by the Appellate Court on 18.12.2016 in Title Appeal No.22/2016 are attempting, threatening and circulating in the locality to create disturbance to the plaintiffs' possession over the land described in the Schedule to the plaint in Title Suit No.132/2017. It is the further case of the petitioners that on coming to learn about the said judgment and decree passed by the Trial Court as well as the First Appellate Court, the petitioners made enquiries and could come to Page No.# 6/14 learn that the respondent nos.1 to 6 herein (defendant nos.1 to 6 in the suit) in consort and collusion with the defendant no.7 in the suit had file Title Suit No.164/2012 knowing fully well that the petitioners are the absolute owners of the land described in the Schedule to the plaint in Title Suit No.132/2017 and had obtained the decree in respect to a larger plot of land as described in the Schedule to Title Suit No.164/2012 which included the suit land in Title Suit No.132/2017. In doing so, the respondent nos.1 to 6 who were the plaintiffs in Title Suit No.164/2012 by committing fraud did not mention that the petitioners were the owners of a part of the Schedule land in Title Suit No.164/2012 and thereby obtained the said decree fraudulently. It is also the case of the petitioners in the suit that decree passed in Title Suit No.164/2012 is merely a declaratory decree declaring the right, title, interest along with confirmation of possession and for permanent injunction against the defendant in the said suit i.e. Title Suit No.164/2012 and on the basis of the said decree the respondent nos.1 to 6 herein could not have forcefully dispossessed the plaintiffs who are the absolute owners of the land described in the Schedule in Title Suit No.132/2017. It is on that basis the Title Suit No.132/2017 seeking various reliefs including the relief that the plaintiffs (petitioners herein) are the absolute owners of the suit land described in the Schedule to the plaint and confirmation of possession of the plaintiffs over the said suit land; for declaration that the judgment and decree dated 30.07.2016 passed in Title Suit No.164/2012 and the judgment and decree dated 18.12.2016 passed in Title Appeal No.22/2016 thereby confirming the judgment and decree dated 30.07.2016 is illegal, collusive, void, fraudulent, inoperative and not binding upon the plaintiffs as well as for permanent injunction. Along with the said suit an injunction application was also filed narrating the same fact as stated in the plaint and further stating inter alia that if an injunction is not granted the respondent nos.1 to 6 herein shall dispossess the plaintiffs (petitioners herein) from the suit land as well as also seeking an injunction that the respondent nos.1 to 6 should be restrained from transferring the suit land in any manner whatsoever. The said injunction application was registered and numbered as Misc. Case No.108/2017.

7. The respondent Nos.1 to 6 herein filed a detailed written statement for the purpose of the instant lis. It is relevant to mention that in the written statement filed by the respondent nos.1 to 6 they have averred that they are the absolute owners of the Schedule land as Page No.# 7/14 described in the Schedule to the written statement and land as mentioned in the registered Sale Deed No.5790 dated 27.07.1953 and the registered Sale Deed No.1767 dated 31.05.1956 on the basis of which the petitioners/plaintiffs claimed their right is no way connected to the Schedule land. It is also averred that the petitioners have never possessed the landed property as described in the Schedule to the written statement. Written objection was also filed contending similarly to what has been contended in the written statement and further added that no injunction ought to be granted on the ground that the requisites for grant of an injunction i.e. prima facie case, balance of convenience and the irreparable loss, harm and injury is not there for grant of an injunction. Be that as it may, it may be relevant to mention that both in the written statement as well as also in the written objection, no objection was raised that the suit was not maintainable under the provisions of Order XXI Rule 101 in view of the decree passed in Title Suit No.164/2012 and affirmed by the Appellate Court in Title Appeal No.22/2016.

8. The learned Court of the Munsiff No.1, Karimganj vide an order dated 17.12.2017 after taking into consideration the allegations and counter-allegations of the parties exercised its discretion to direct both the parties to maintain status quo in respect to the suit land as on 07.12.2017 till the disposal of the suit and further directed both the parties to maintain status quo in respect to the suit land and not to alienate the suit land or do anything which might change the nature, feature and character of the suit land till the disposal of the main suit.

9. Being aggrieved by the said order passed in Misc. Case No.108/2017 the respondent nos.1 to 6 preferred an appeal being Misc. Appeal No.22/2017. The Appellate Court vide the impugned order dated 26.04.2018 held that the bar under Order XXI Rule 101 of the CPC to maintain a separate suit is applicable to the case and consequently the suit was not maintainable, and as such, there was no prima facie case. The Appellate Court further held that the further question of looking into the aspect as regards balance of convenience and irreparable loss did not arise in absence of the prima facie case and consequently interfered with the impugned order dated 07.12.2017 passed by the Munsiff No.1, Karimganj in Misc. Case No.108/2017 arising out of Title Suit No.132/2017. Against the said order, the instant application has been filed by invoking the supervisory jurisdiction of the Court under Article 227 of the Constitution of India. In the backdrop of the above facts the question therefore Page No.# 8/14 arises as to whether the suit prima facie was not maintainable in view of the bar contained under Order XXI Rule 101 of the CPC.

10. Order XXI Rule 97 to 106 have been kept under the caption "Resistance to delivery of possession to decree-holder or purchaser". A perusal of the Rule 97 of Order XXI shows that not only a decree-holder or a purchaser but also a third party can complain of resistance and obstruction to the decree for execution as could be seen from the term "any person" as contained in Rule 97. The Executing Court under Sub-Rule (2) of Rule 97 have been enjoined with the duty to proceed with the adjudication of the application in accordance with the provisions laid down. Rule 99 of Order XXI comes into play when any person other than judgment-debtor is dispossessed from the immovable property by the holder of a decree for possession of such property or such property has been sold in execution of a decree, by the purchaser thereof and he may make an application to the Court complaining of such dispossession.

11. Similar to Sub-Rule (2) of Rule 97 of Order XXI and Sub-Rule (2) of Rule 99 of Order XXI also enjoins a duty upon the Executing Court to proceed to adjudicate upon the application in accordance with the provisions contained therein. Rule 101 of Order XXI stipulates that all questions arising between the parties to proceed to on an application under Rule 97 and 99 shall be determined by the Executing Court and not by a separate suit. However, it is relevant herein to mention that a conjoint reading of Rule 97, 98, 99, 100, 101 and 103 of Order XXI would show that the said provisions are only applicable when there is a decree for delivery of possession and in pursuant to the decree for delivery of possession there is an obstruction or resistance to the decree-holder or the purchaser or a resistance by a third party or a dispossession being made in pursuant to a decree passed by the Court under Rule 99 of Order XXI. Thus, from the above it would be seen that unless and until there is a decree for delivery of possession the provisions of Order XXI Rule 97 to 100 has no application. In the instant case as it is a decree for declaration of their right, title, interest and for confirmation of possession which have been passed in Title Suit No.164/2012, the said decree is not executable for delivery of possession, save and except the permanent injunction which is to be done in terms with the Order XXI Rule 32 after following the procedure Page No.# 9/14 prescribed therein. The judgment placed by Mr. P.K. Roy, the learned counsel for the Respondents are all judgments wherein there was a decree for delivery of possession for which the said judgments are not applicable. Consequently the bar under Order XXI Rule 101 of the CPC shall not be applicable insofar the as the judgment and decree passed in Title Suit No. 164/2012, and as such, the First Appellate Court committed a jurisdictional error in coming to the finding that the suit filed by the plaintiffs/petitioners herein was not maintainable on the ground of the bar contained under Order XXI Rule 101 of the CPC.

12. Another aspect of the matter which also requires to be taken note is that the plaintiffs have alleged that the judgment and decree passed in Title Suit No. 164/2012 was obtained fraudulently behind the back of the plaintiffs/petitioners. In this regard the petitioners have alleged in paragraph 7 of the plaint that the judgment and decree obtained by the respondents herein in Title Suit No. 164/2012 was obtained by practicing fraud. The relevant portion of the said paragraph 7 is quoted here-in-below:-

"7. And on perusal of the certified copies of the said so called judgments and decrees dtd. 30-07-2016 & 18-12-2016 passed in the said T.S. No.164 of 2012 and T.A. No. 22 of 2016 respectively it was found that the principal defendant Nos. 1 to 6 and said Jagati Bhar(Now deceased) in spite of having their no sort of title or possession over the suit land and knowingly fully well about the title and possession of the plaintiffs over the suit land with their evil and ulterior motive to grab the suit land most illegally filed abovesaid T.S. No. 164/ of 2012 in respect of the suit land and other lands with false, vague, frivolous and illusory averments and description of land and alleging to be the owners and possessors of the suit land and other lands by inheritance being the second generation in the line decedents of Late Subhog Bhar and even without impleading the plaintiffs of this suit or even the successors of the vendor of the predecessor of the plaintiffs namely Sri Sripati Bhar (now deceased) who was the admitted & recorded co-owner of the suit land and other lands along with said Sri Subhog Bhar (now deceased) claiming/praying for their so called title and possession over the suit land along with other Page No.# 10/14 lands and thereby practicing fraud and misleading the Ld. Court fraudulently obtained the said judgment & decree dtd. 30-07-2016 in the said T.S. No. 164 of 2012, wherein the Ld. Court of Munsiff No. (2), Karimganj decreed the said Title Suit declaring landholder right and possession in respect of the land of dags mentioned to the extent of share of their predecessor Late Subhog Bhar and restrained the defendant (i.e., the principal defendant No.-7 of this suit) from interfering into possession of the plaintiff (i.e. the principal defendant Nos. 1 to 6 of this suit and said Jagati Bhar) and so on."

13. In the backdrop of the above quoted allegation, let me see as to whether the said allegation can be termed as an allegation of fraud. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another. It is a cheating intended to get an advantage. Fraud is an intrinsic, collateral act and fraud of an egregious nature will vitiate the most solemn proceedings of a Court of justice. It involves two elements; deceit and injury to the person deceived. It is well settled that no judgment of a Court, no order of a minister can be allowed to stand if it is obtained by fraud. Fraud unravels everything and vitiates even the most solemn proceedings in any civilized system of jurisprudence and once a fraud is proved, all advantages gained by playing fraud can be taken away. It is also well established that when a fraud is proved all advantages gained by playing fraud can be taken away. In such an eventuality, the question of non-executing the statutory remedies or statutory bar like a doctrine of res judicata is not attracted. Suppression of any material fact/document amounts to a fraud on the Court.

14. The allegation as mentioned here-in-above is that the plaintiff in Title Suit No. 164/2012 had knowledge that the suit land in the instant suit, which forms a part of the suit land in Title Suit No. 164/2012 belonged to the petitioners/plaintiffs and by withholding the information the respondents herein i.e. the plaintiffs in Title Suit No. 164/2021 filed the said suit in consort and collusion with the defendant therein and obtained the declaratory decree along with permanent injunction in respect to the said suit land in Title Suit No. 164/2012 which included the suit land of the instant suit. The said allegation made in paragraph 7 of Page No.# 11/14 the plaint if proved, would amount to a fraud, is the prima facie view of this Court and the said allegation can only be gone into at the trial of the suit. The Supreme Court in the case of S.P. Chengalvaraya Naidu Vs. Jagannath (Dead) by L.Rs. and Anr. reported in (1994) 1 SCC 1 at paragraph 1 and paragraph 5 summarized the concept of fraud and the finality attached to a judgment obtained by practicing fraud as here-in-under :

"1. Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

15. It is also relevant to note that as fraud will vitiate all proceedings, a suit or even any collateral proceeding is maintainable challenging a judgment and decree obtained by way of fraud.

16. The First Appellate Court did neither take into account the allegation of fraud made in the plaint as well as injunction application while adjudicating the appeal nor took into account that the decree, which was being passed was merely a declaratory decree with a consequential relief of permanent injunction and there was no decree for delivery of possession and consequently the bar under Order XXI Rule 101 of the CPC is not applicable. Under such circumstances, the impugned order, whereby the order of injunction passed by the Trial Court in exercise of its equitable and discretionary jurisdiction was wrongly interfered Page No.# 12/14 with or in other words the First Appellate Court completely failed to take note that the jurisdiction of the Appellate Court in respect to an discretionary order of injunction was only in appeal can only be done so within the four corners of the law well settled by the Supreme Court. In this regard paragraph 14 of the judgment rendered in the case of Wander Ltd. And. Anr. Vs. Antox India P. Ltd. reported in (1990) Suppl. SCC 727 is quoted here-in-below :-

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :

... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.

The appellate judgment does not seem to defer to this principle."

17. In view of the above, the impugned order passed by the First Appellate Court is liable to be interfered with.

18. Now the next question which arises is that taking into consideration that the Appellate Court had only limited its exercise on the question of prima facie case without going to the other two ingredients for grant of an injunction, would it be proper on the part of this Court to remand back the matter to the First Appellate Court to decide the injunction appeal afresh in the light of the observations made here-in-above or this Court in exercise of its supervisory jurisdiction cannot looked into the correctness of the order dated 07/12/2017 passed by the Trial Court in Misc. Case No. 108/2017. Taking into consideration that this is an injunction proceeding and it requires to be expeditiously disposed of, I am of the opinion that the correctness of the order dated 07/12/2017 can be looked into by this Court. A perusal of the Page No.# 13/14 order dated 07/12/2017 would go to show that the Trial Court in exercise of its discretionary and equitable jurisdiction was of the opinion that the status-quo in respect to the suit land in Title Suit No. 132/2017 had to be maintained and thereby directing both the parties to maintain status quo as regards possession and also not to alienate the suit land or do anything which would change the nature, feature and character of the suit land as on 07/12/2017 till the disposal of the main suit. There is no quarrel with the proposition that a temporary injunction can be granted in a suit seeking declaration of right, title and interest, confirmation of possession and permanent injunction as well as for setting aside a decree on the ground of collusion and fraud and in that regard reference may be made to the judgment of the Supreme Court rendered in the case of State of M.P. and Anr. Vs. Brijesh Kumar Awasthi and Anr. reported in (1997) 4 SCC 472.

19. The allegation made in the plaint as well as also in the injunction application is to the effect that by practicing fraud the respondents herein had obtained a decree in Title Suit No. 164/2012 behind the back of the petitioners and the said decree is a decree for declaration of their right, title and interest along with confirmation of possession and for permanent injunction and on the basis of the decree, the respondents are threatening to dispossess the petitioners from the suit land in Title Suit No. 132/2017.

20. It is a trite principle of law that even a trespasser cannot be dispossessed without following the due process of law and taking into acc

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ount the allegations made by the plaintiffs/petitioners, which obviously needs to be adjudicated in the trial of the suit, it is necessary that if the plaintiffs are in possession of the suit land, the plaintiffs ought to be protected by way of an injunction till the disposal of the suit. Another aspect which also needs to be looked into is whether the injunction order passed by the Trial Court directing both the parties not to alienate or do anything, which would affect the nature and character of the suit property is to be interfered with or not, I am of the opinion that though Section 52 of the Transfer Property Act, 1882 stipulates the principles of lis-pendens thereby any transfer made during the pendency of the suit shall be subject to the outcome of the suit, but as no transfer has yet been made as on the date on which the injunction order dated 17/12/2017 was passed, admittedly it would be necessary that pending disposal of the suit, no alienation or changing the nature and character of the suit property be changed, else it may result in Page No.# 14/14 creation of third party rights and the multiplicity of proceedings. 21. In view of the above, it would be seen that the plaintiffs/petitioners has a prima facie case for trial. The balance of convenience is also in favour of the petitioners for protecting the subject matter of the suit as aforesaid, else it may lead to multiplicity of proceedings. The petitioners claims to be the owner of the suit land in Title Suit No. 132/2017, which is an area admeasuring 2 bighas on the basis of the two deeds of sale as aforementioned and their further claim that they are in possession of the suit property. The respondents herein also claims that they are also in possession of the suit property. Under such circumstances, it would be in the interest of justice that the status-quo as regards the possession of the suit property is maintained as of 07/12/2017, the date on which, the Trial Court passed an order of injunction. It is also pertinent herein to mention that the petitioners claiming that they are owner of the suit land on the basis of the two deeds, as mentioned above, and the respondents claiming that they are the owner of the suit land which is a part of the schedule to the written statement and as such, it would be in the interest of justice that pending disposal of the suit there shall be no alienation of the suit property described in the schedule to the plaint i.e. the area admeasuring 2 bighas within the Old Dag No.103(Part) under Old Patta No. 2007/24 corresponding to New Dag No. 135 (Part) under New Patta No. 217 and the boundaries mentioned in the schedule of the plaint. The observations made here-in- above are only limited to the adjudication of the injunction proceeding and the same shall not affect in the adjudication of the merits during the trial of the suit. 22. With the above observations, the instant petition stands allowed thereby the judgment passed by the First Appellate Court dated 26/04/2018 in Misc. Appeal No. 22/2017 is set aside and the injunction order dated 07/12/2017 passed in Misc. Case No. 108/2019 arising out of Title Suit No. 132/2017 shall remain in force till the disposal of the suit. No cost.
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