SHRI NIHAR RANJAN NATH AND OTHERS Vs. RANADHIR NATH & OTHERS

JUDGEMENT

(1.) By this common judgment, I propose to dispose of Civil Revision Nos. 195 and 196 of 1981 as common questions of law and facts are involved in both these Civil Revisions. Both the Civil Revisions under section 115 of the Code of Civil Procedure are directed against the judgment and orders of the learned Assistant District Judge No. 1. Cachar at Silchar dated 29.8.81 passed in Misc. case No. 26 of 1981 and 20 of 1981. Both the Misc. cases arose out of Misc. Case No. 3/81 pending in the Court of Sadar munsiff No. 4, Silchar and Misc. Case No. 3/81 pending in the Court of Sadar Munsiff No. 3. at Silchar. Both the case arose out of S.T. No. 70/81 pending in the Court of Sadar Munsiff No. 4 at Silchar and S.T. No. 69/81 pending in the Court of Sadar Munsiff No. 3 at Silchar respectively. Title Suit No. 59 of 1981 and 70 of 1981 were instituted by the plaintiffs-opposite parties for grant of permanent injunctions against the defendants-petitioners in respect of an area of land measuring 6b-9k-4 and 4b-18k-10 Chataks, respectively. The plaintiffs-opposite parties claimed no other relief in the aforesaid suits.

(2.) The plaintiffs' case, inter alia, is that the lands belonged to them and they are in possession of the same for more than 12 years. According to the plaintiff, the said land belonged to them by right of inheritance and purchase. The plaintiffs alleged that the defendants Nos. 1 to 5 sold their entire Maliki right to them and subsequently the defendants Nos. 1 to 5 sold some lands to defendant Nos. 7 to 11 after the sale to the plaintiffs. It was further stated that the defendants No. 8 and 9 were alleged to have purchased jote right from one Dilahar Ali although he had no tenancy right. On or about 12.4.81, the defendants alleged to have tried to disposses the plaintiffs forcibly from the suit land and, as such, the plaintiffs had to file the aforesaid suits praying for grant of permanent injunction restraining the defendants not to disturb the possession of the plaintiffs. The plaintiffs, on such institution of the suits, filed applications under Order 39, Rules 1 and 2 of the Code of Civil Procedure praying for granting temporary injunction restraining the defendants not to interfere with the plaintiffs' possession in respect of the land till disposal of the suits. On the prayer of the plaintiffs, the learned Munsiffs No. 3, Silchar by the order dated 25.5.81 and learned Munsiff No. 4, Silchar by the order dated 25.4 81 granted ad-interim temporary injunction against the defendants and issued notices upon the defendants to show cause against the order of injunction. The defendants on coming to know about the order of injunction, did not appear before the learned Munsiffs Nos. 3 and 4 at Silchar but preferred two appeals before the learned Assistant District Judge No. 1 at Silchar. The learned appellate Court, however, admitted the appeal but did not pass any stay order of injunction as against which the petitioners (Defendants) came to this Court in revision. However, the applications of the petitioners were rejected but a direction was made to the learned Assistant District Judge to dispose of stay matter. The lower appellate Court, however, finally heard the stay applications on 25.8.81, along with the appeal and by its order dated 29.8.81 dismissed both the appeals. It is against these orders, the petitioners (Defendants) have come up in revision to this Court.

(3.) Mr. A.M. Majumdar, learned Advocate General who appears on behalf of the petitioners has submitted the following: (a) the learned appellate Court below while disposing the appeals tailed to consider the relevant documents submitted by the petitioners which ought to have been considered by the lower appellate Court which, according to Mr. Majumdar were relevant for the purpose of disposal of both the cases: (b) the learned lower appellate Court did not consider the legality and propriety of the two orders passed by the learned Munsiffs granting ex-parte ad-interim injunction; (c) the plaintiffs and the defendants being the co-sharers no such injunction ought to have been granted as a co-sharer cannot restrain the other co-sharer from entering into the lands in question; (d) the suit being itself not maintainable in law, the learned trial Court was not correct in holding that there was prima facie case as made out by the plaintiffs to justify the issue of such injunction and (e) while passing the respective orders by the learned trial Court, the mandatory provisions of Order 39, Rule 3 and its proviso was not followed and, as such both the orders are legally untenable and the learned lower appellate Court ought to have set aside both the orders passed by the respective learned trial Court.