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Judgment
Heard Mr. B.K. Jain, learned counsel for the petitioner. Also heard Mr. S.K. Ghosh, learned counsel appearing for the respondents.
This application under Article 227 of the Constitution of India read with Section 115 CPC is filed against the order dated 15.6.2016 passed by
the learned Civil Judge No. 2, Cachar, Silchar in Misc. Appeal No. 20/2014, affirming the order dated 30.9.2014 passed by the learned Munsiff
No. 1, Cachar, Silchar in Misc. (J) Case No. 8/2014 arising out of Title Suit No. 40/2014, rejecting the petition filed by the petitioner/plaintiff
under Order 39 Rule 1 and 2 read with Section 151 CPC for grant of temporary injunction.
Mr. Jain has submitted that though a prayer was made in the injunction petition for restraining the defendant from using the Schedule-II land, he
will not make any prayer with regard to the same. He has submitted that raising the level of the Schedule-II land by the defendants unilaterally had
caused grave prejudice to the petitioners as the rest of the land of the petitioners becomes low, resulting in water logging during the rainy seasons
and thereby posing health hazard. He has further submitted that parking of two-wheelers also causes grave inconvenience to the plaintiff, who is a
76 year old lady.
Mr. Ghosh supports the impugned orders and submits that no interference is called for.
The plaintiff filed the suit against the respondents herein, arraying them as defendant Nos. 1, 2 and 3, and some proforma defendants, claiming
right, title and interest in respect of Schedule-II land of the plaint, which is a strip of land measuring 4 ft. wide in the east-west direction and 76 ft.
in length (approximate) in north-south direction.
Schedule-II land, according to the own version of the plaintiff, is a part of Acharya Jagadish Chandra Basu Lane. The suit of the plaintiff is
based on the premise that in the year 2010 in a formal meeting of the residents of the locality, a resolution was taken to close down the Acharya
Jagadish Chandra Basu Lane in view of decision to use M.A. Majumder Lane. It is pleaded that the predecessor-in-interest of the present
respondent Nos. 1 to 3 also supported the resolution by subscribing his signature. However, later on, he back-tracked and continued to use the
Schedule-II land.
In the injunction petition, prayer was made for restraining the defendants from using the said Schedule-II land and from raising the surface level
of the pathway and from changing the nature and feature of the Schedule-II land.
Objection was filed in the injunction petition taking a plea that Schedule-II land is a public pathway, managed and maintained by Silchar
Municipal Board. Reference was also made to a decree passed in TS No. 98/1999 filed by, amongst others, the predecessor-ininterest of the
respondent Nos. 1, 2 and 3. Averments are made that the signatures of the father of the respondent Nos. 1, 2 and 3 were forcibly taken.
It appears from the stand taken in the written objection that there is no categorical denial that the father of the respondent Nos. 1, 2 and 3 had
not subscribed his signature in the resolution but what is sought to be contended is that the signatures of the predecessorin- interest of the
respondent Nos. 1, 2 and 3 were taken by force in some blank papers and the plaintiff had sought to rely upon such manufactured documents.
From a perusal of the judgment dated 3.8.2005 rendered in TS No. 98/1999 passed by the learned Civil Judge (Senior Division) No. 1, it
appears that the predecessor-in-interest of the defendant Nos. 1, 2 and 3 purchased the land from the present petitioner and it was pleaded that
the present petitioner agreed to keep 6 ft. wide strip from east to west from her unsold land up to the PWD road vacant for ingress and egress but
instead of 6 ft., in the sale deed, it was altered to 4 ft. The allegations of manipulation and fraud was disbelieved by the learned trial court and it
was held that breadth of the suit path was 4 ft. and not 6 ft. and that the plaintiffs had acquired right to use the path of 4 ft. width.
The learned trial court, in view of the aforesaid judgment dated 3.8.2005, rendered in TS No. 98/1999, while rejecting the petition for
temporary injunction, had held that the defendants will be seriously inconvenienced if they are restrained from using the Acharya Jagadish Basu
Lane, they.
A perusal of the judgment of the learned trial court, however, demonstrates that other prayers made by the plaintiff in respect of grant of
injunction had not even been adverted to.
In the appeal preferred, the learned appellate court affirmed the reasoning of the learned trial court.
It appears from the judgment of the learned appellate court that though no occasion had really arisen, certain findings had been recorded. It
was held that any agreement in contravention with the said finding of the civil court (meaning thereby in TS 98/1999) either executed on free will or
executed forcefully can be acted upon or take away the right given to someone. Accordingly, it was held that the claim of the appellant that the
respondents are bound by the agreement of residents of M.A. Majumder Lane dated 25.4.2010 is not tenable. These findings are recorded
without any reasoning.
Perusal of the judgments goes to show that both the courts below were weighed down by the judgment passed in TS No. 98/1999.
On consideration of the materials on record, it is directed that none of the parties will unilaterally raise the surface level of Schedule-II land.
The Schedule-II land shall be kept clear of any obstruction and no vehicles/two wheelers shall be parked in the aforesaid Schedule-II land by any
of the parties. The plaintiff shall also not obstruct the defendants in use of the Schedule-II land in any manner. The nature and character of the suit
land shall not be changed during pendency of the trial. Findings recorded by the learned courts below shall be construed to have been made for the
purpose of deciding the injunction petition and shall not influence the learned trial court while deciding the suit.
The petition stands disposed of.