FAO 11/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The order dated 28.1.2011 passed by the learned Civil Judge, No.2, Kamru p, Guwahati in Misc. (J) Case No. 196/2010 filed under Order 39 Rule 4 of the Ci vil Procedure Code (for short, hereinafter referred to as ’the Code’) arising ou t of Title Suit No. 243/2010 forms the subject matter of the instant appeal. Th ereby, the learned Trial Court sustained the grant of temporary injunction recor ded in its order dated 7.10.2010 passed in the aforesaid Misc. (J) Case No. 196/ 2010. I have heard Mr MK Choudhury, learned senior counsel assisted by Mr M Du tta, Advocate for the appellants and Mr PK Deka, learned counsel for the respond ent/ plaintiff. The respondent/ plaintiff as above instituted the aforementioned suit pr aying for the following reliefs: I. for declaration that the plaintiff has right, title and interest over the la nd described in Schedule A & B to the plaint ; II. for recovery of possession in favour of the plaintiff by removing the defend ants No. 1 & 2, their men, agents and structures sanding on the Schedule-B land. III. for declaration that the Sale Deed bearing No. 8755/07 dated 2-07-07 has no t confirmed any right, title and interest over the Schedule-B land to the defend ants No. 1 & 2 and the same is liable to be cancelled and accordingly a precept may be sent to the Sub-Registrar, Gauhati Sub-Registry to that effect; IV. for permanent injunction restraining the defendant No.1 & 2, their men, agen ts, servants and workmen from interfering with the peaceful enjoyment and posses sion of the plaintiff in the land described in the Schedule ’B’ to the plaint by making and construction whatsoever over the plaintiffs land. . His pleaded case in short is that he is the owner of a plot of land meas uring 1 Katha 1 Lechas covered by Dag No. 152, 157 of K.P. Patta No. 121 of Vill age- Sahar Guwahati, Part-III, under Mouza- Guwahati in the district of Kamrup. According to him, he purchased this land from its erstwhile owners Nazimul Islam and Naazneen Islam for valuable consideration. The said land at the time of pur chase was described in the schedule to the sale deed dated 1.2.2007 as follows: SCHEDULE OF PROPERTY All that part and parcel of a plot of land measuring 1(One) Katha 1 (One ) Lechas, covered by Dag No. 152 & 157 of K.P. Patta No. 121 situated in village Sahar Guwahati Part-III, mouza- Guwahati, in the district of Kamrup, Assam, und er the jurisdiction of the Sub-Registry office, Kamrup, Guwahati which is butted and bounded by as follows:- North : Late Sahidul Islam South : A. Zaman (Manu) East : Tasdiqur Rahman & Late S. Rahman West : Road (Tiptop Goli) He stated that this land was brought under new K.P. Patta No. 484 and Da g No. 159/709 in the same village and Mouza as above in the last settlement oper ation whereafter final K.P. Patta No. 484 was issued to him. He described this purchased land in Schedule-A to the plaint as hereinbelow:- Schedule-A A plot of land measuring 1 katha 1 Lechas (2.89 Are) covered by Dag No. 152(old)/709(new) of K.P. Patta No. 121 (old)/484(new) of Sahar Guwahati Part-II I under Mouza Guwahati, in the district of Kamrup (Metro), Assam, which is bound ed by- North : A. Zaman (Manu’s Land) South : Late Sahdul Islam East : Land of plaintiff & Mrs. Samim Ara Rahman West : Road (Tip Top Gali). . In addition to claiming that he is residing on the contiguous eastern si de of this land, he asserted that he after the purchase had constructed a two-st oried building on the land so acquired after obtaining necessary permission from the Guwahati Metropolitan Development Authority leaving a vacant land of 6 Lech as as described in Schedule-B to the plaint in order to comply with the requirem ents of the Municipal Laws in force. He further stated that the present appellan t (defendant Nos. 1 and 2 in the suit) who reside on the contiguous northern sid e of the land so purchased by him trespassed into a portion thereof (described i n Schedule-A to the plaint) with the intention of erecting permanent structure t hereon. On resistance being offered by him, the appellants remained unmoved. On enquiries being made thereafter the respondent/ plaintiff could come to learn th at they purchased a plot of land measuring 11 Lechas from three daughters of Lat e Taijul Islam, the father of his vendor. As the appellants/ defendant Nos. 1 a nd 2 started collecting and stacking construction materials on the encroached po rtion of his purchased land (described in Schedule-B to the plaint), he institut ed the suit praying for the aforementioned reliefs. Along with the suit he filed an application for temporary injunction under Order 39 Rule 1 and 2 of the Code substantially making the same statements as above. This application was registered as Misc. (J) Case No. 196/2010. As menti oned hereinbefore by order dated 7.10.2010 the learned Trial Court on a detailed consideration of the materials then available, directed the appellants/ defenda nt Nos. 1 and 2 to maintain status-quo of the suit land (Schedule-B to the plain t) in respect of the construction work thereon. Notice was issued to the opposit e party as a whole. In response to the notice the present appellants filed an application un der Order 39 Rule 4 of the Code read with Section 151 thereof seeking vacation o f the interim restraint granted by the order dated 7.10.2010. They claimed to ha ve purchased 11 Lechas of land by a sale deed dated 3.7.2007 executed by Ms Abid a Begum, Ms. Arifa Begum and Ms Taj Begum, sisters of the vendor of the responde nt/ plaintiff tracing common title to their predecessor-in-interest therein. The y described the purchased land as follows:- Schedule of the sold land Of Kamrup District under the Office of the Guwhaati Sub registry, Guwahati Mouz a, Sahar Guwahati Part 3, 11 Lechas (eleven Lechas) (1.47 are) of land sold with land and house of K.P. Patta No. 121 Dag No. 152. Boundaries North by : Manu Zaman South by: Nazimul Islam & Nazneed Islam East by : Tadiqur Rahman West by: Tip Top Gali (Lane) The sold is within the above boundaries . They thereby stoutly denied the respondent/ plaintiff’s allegation of th eir encroachment of his purchased land and asserted their absolute right, title and interest therein. The learned Trial Court on a consideration of the pleading s available on the issue and after hearing the learned counsel for the parties b y the order impugned restrained the appellants from undertaking construction wor ks over the suit land pending disposal of the suit. Mr Choudhury has emphatically urged that the learned Court below having missed to take into consideration certain vital factual aspects in passing the i mpugned order in total disregard of the essential pre-requisites prescribed by l aw therefor, the same ought to be set aside. While reiterating that the appellan ts intend to raise construction on the land purchased by them for valuable consi deration for which necessary sanction has been obtained from the concerned autho rities, the learned senior counsel has argued with particular reference to the s chedule of the land mentioned in the sale deed of the respondent/ plaintiff as w ell as in the plaint that on the face of the record there being apparent anomali es therein, his plea of encroachment levelled against the appellants is unfounde d. As the respondent/ plaintiff’s plea is bereft of any prima facie authenticit y the learned Trial Court erred in law and on facts in passing the impugned orde r, he urged. Mr Deka, in reply, has argued that as marginal differences between the s chedules of the purchased land and the one described in the schedules to the pla int has been aptly clarified in the plaint, the appellants’ contention based the reon is wholly misplaced. As in the suit the respondent/ plaintiff inter alia ha s sought for declaration of his right, title and interest over the suit land and khas possession thereof together with an adjudication that the claimed purchase of the land described in Schedule-B is invalid in law, the impugned order which is otherwise valid if tested on the touchstone of the essentialities for grant or otherwise of an order of injunction, no interference therewith is called for. The pleadings as referred to hereinabove as available at this stage of t he suit and the documents relevant for the purpose of the instant appeal have be en duly considered. The arguments advanced on behalf of the parties have also be en noted. Noticeably, both the parties claim purchase of the suit land described in Schedule-B for valuable consideration. Whereas the respondent/ plaintiff all eges that the appellants (defendant Nos. 1 and 2) have encroached upon the same without any authority of law, the latter claimed their possession on the basis o f a purchase. A bare perusal of the schedules of the land purchased by the respo ndent/ plaintiff and the one described in the schedule to the plaint demonstrate anomalies. An explanation to this effect is provided to some extent in para 1 t o the plaint. The sale deeds of the parties reflect that the transactions contai ned therein had taken place in the year 2007. The respondent/ plaintiff has inte r alia averred that he has his residence on the contiguous eastern side of the l and so purchased by him. It is not unlikely that with the passage of time since the purchase of the land the boundaries thereof had undergone some changes. This , however, is a tentative observation of this Court. There is also a reference o f a rectification deed in the plaint vis-à-vis this land. Notwithstanding all t hese, in the estimate of this Court, it would be highly inexpedient and inadvisa ble to record a finding with regard to title in the suit land, more particularly , when the suit is awaiting adjudication in law. The appellants (defendant Nos. 1 and 2) admittedly are in possession of the suit land described in Schedule-B as on date. Significantly, the respondent/ plaintiff as alluded hereinabove has prayed not only for recovery of possession thereof but also has sought for a declaration that the sale deed of the appella nts/ defendant Nos. 1 and 2 is invalid in law. The appellants seem to have retur ned the compliments by instituting T.S. No. 88/2011 seeking a decree for cancell ation of the sale deed of the present respondent. I have closely perused the impugned order dated 28.1.2011 and also the o ne dated 7.10.2010. On a totality of the considerations as above and having regard to the pr esent stage of the suit instituted by the respondent/ plaintiff, this Court is o f the unhesitant opinion that the arrangement sought to be effected by the order impugned ought to be sustained. Keeping in mind the mutual orientation of the p arties and the reliefs sought for by them, in the comprehension of this Court, i f the interim restraint on the suit land is lifted and the appellants are allowe d to raise construction thereon, it would lead to an irreversible situation havi ng the potential of rendering the adjudication to follow futile for all practica l purposes. The learned Court below, in the opinion of this Court, has adequatel y dealt with the essential factual aspects and the law bearing on the grant of i njunction. Considering the nature of the appeal which is one preferred against an o rder granting discretionary and equitable relief, in absence of any visible absu rdity or illogicalness apart from any illegality, no interference therewith is c alled for. The appeal, therefore, is dismissed. However, as high stakes of the parties are involved, the learned Court b elow is requested to expedite disposal of the suit to the extent possible. No co sts.