CRP 334/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The instant petition witnesses a challenge to the order dated 17.8.2011 passed b y the learned Addl. District Judge (FTC) No.2, Kamrup, Guwahati in Misc. Appeal No. 15/2011 dismissing the same. Thereby, interference with the order dated 6.5. 2011 passed by the learned Civil Judge, No.1, Kamrup, Guwahati in Misc. (J) Case No. 71/2011 was declined. I have heard Mr G Choudhury, Advocate for the petitioner and Mr PK Deka, Advocate assisted by Mr H Nath, Advocate for the opposite party No.2. For the order proposed to be passed it is not considered necessary to is sue notice on the others impleaded in the instant petition. The instant case has a chequered background witnessing a spate of procee dings amongst the members of the same family. The petitioner and the opposite pa rty are the successors-in-interest of Harendranath Kalita (since deceased). Wher eas the petitioner and the opposite party Nos. 2,3,4 and 5 are the children, the opposite party No. 1 is the widow. Shortly put, after the demise of the predecessor-in-interest of the parties in t he year 1975, the opposite party No.1 instituted Title Suit No. 179/2003 in the Court of the learned Civil Judge (Senior Division) No.2, Kamrup, Guwahati again st the present opposite party No. 2 inter alia praying for a decree for declarin g the agreement registered as Deed No. 3288 dated 2.4.2003 purporting to be one for selling of the property mentioned therein to the latter i.e. the opposite pa rty No.2 to be void. In the suit the opposite party No.2 laid a counter claim se eking a decree directing the opposite party No.1/ plaintiff therein to execute a sale deed in terms of the said agreement. By the judgment and order dated 26.3. 2007 and decree dated 24.4.2007, whereas the suit was dismissed, the counter-cla im was decreed. The opposite party No.2 thereafter instituted Title Execution Ca se No. 6/2007 and eventually a sale deed in terms of the aforementioned agreemen t was executed in her favour with the intervention of the Court on 3.3.2009. Whereas the opposite party No.2 has contended that during the pendency of the af orementioned suit an application for impleadment was made by the present petiti oner registered as Misc. (J) Case No. 121/2005 and that it was dismissed on 8.8. 2005, the petitioner has expressed ignorance thereof. Admittedly, neither the or der dated 8.8.2005 passed in Misc. (J) Case No. 121/2005 nor the proceedings of Title Execution Case No. 6/2007 was thereafter put to challenge in any higher fo rum. It was only in the year 2008 that the present petitioner instituted Title S uit No. 323/2008, amongst others, for declaration of his right, title and intere st in his share of the suit property and also for adjudging the agreement dated 2.4.2003 and the judgment and order dated 26.3.2007 and the decree dated 24.4.20 07 hereinbefore mentioned invalid and non-est in law. The suit was dismissed for default on 14.9.2010 and, therefore, did not reach the stage of final adjudicat ion. A fresh endeavour by the petitioner has now been made in the form of Tit le Suit No. 96/2011 impleading the same parties and reiterating the prayer for t he reliefs as sought for by him in Title Suit No. 323/2008. Contending inter al ia that in the factual background, the opposite party No.2 (defendant No.2 in th e suit) taking advantage of the sale deed dated 3.3.2009 has started demolishing the standing house on the suit land and is also contemplating to alienate the s ame, the petitioner prayed for an order of temporary injunction and for that pur pose filed an interim application registered as Misc. (J) Case No. 58/2011. The learned Trial Court at the initial stage only issued a notice on the said applic ation. The petitioner foreseeing irreversible damage to the suit property filed another interim application to the same effect registered as Misc. (J) Case No. 71/2011. On that application as well, a notice was only issued on 6.5.2011. Bein g aggrieved, the petitioner took the challenge to the First Appellate Court in t he form of Misc. Appeal No. 15/2011 in which he insisted for an interim judicial intervention to protect the suit property which was registered as Misc. (J) Cas e No. 188/2011. The opposite party in response to the notice issued in the appeal entere d appearance and filed her written objection resisting the prayer for interim re lief. Therein she inter alia pleaded that after the demise of Harendra Nath Kali ta in the year 1975, the name of her mother (opposite party No.1) was mutated in respect of the land measuring 3 Katha left behind by their predecessor-in-inter est to the knowledge and acquiescence of all the legal heirs vide order dated 25 .11.78 passed by the Sub-Deputy Collector in Mutation Case No. 316/1978-79 in he r name. She asserted that none of the legal heirs objected to this arrangement a nd grant of mutation in the exclusive name of the opposite party No.1. Thereafte r, the opposite party No.1 gifted a plot of land measuring 1 katha 5 lechas to her daughter Santi Das (opposite party No.4) by a registered gift deed No. 3658/ 81 dated 20.4.81. The other heirs inspite of the knowledge of such transaction d id not raise any voice of protest. The opposite party No. 2, therefore, justifie d the agreement between her and her mother which she contended was consummated b y a decree of a Court of law vesting thereby absolute right and title in her in respect of the property contained therein. Upon hearing the learned counsel for the parties, the learned Lower Appe llate Court, as it appears from the impugned order, disposed of the appeal on th e ground that as the same had been preferred against an order passed under Secti on 151 CPC, it was not maintainable. Logically, the Misc. Case was also rejected . Mr Choudhury has urged that as admittedly the petitioner is one of the l egal heirs of Late Harendra Nath Kalita, in absence of any overwhelming material on record to the contrary, he is in law entitled to his share in the property i nvolved. On instructions, the learned counsel has urged that the agreement betwe en the opposite party No. 1 and the opposite party No.2 is a collusive document and is liable to be set aside. Mr Choudhury has further urged that if at this s tage at least status-quo of the property involved is not maintained, it would le ad to irreparable loss and prejudice to him. The impugned order, therefore, has been assailed on the ground that the ultimate finding of the learned Lower Appel late Court on non-maintainability of the appeal is per se unsustainable in law. Mr. Deka, on the other hand, has argued that in the face of the factual backdrop and the decree passed in counter-claim No. 2/2004 and the registered sa le deed dated 3.3.2009, the petitioner has no right in law to interfere with the opposite party No. 2’s exclusive right of enjoyment of the property involved. C ontending that the opposite party No.2 in the facts and circumstances of the cas e can by no means be branded as a trespasser on the suit land, the learned couns el maintained that no interference with the impugned order is called for. On bei ng queried by this Court, Mr Deka on instructions has submitted that there is no immediate contemplation on the part of the opposite party No.2 to alienate the property. Upon hearing the learned counsel for the parties and on a consideration of the materials on record, this Court is of the view that no interference with the impugned order at this stage is warranted. The sequence of events as noticed hereinabove is undisputed which, amongst others, demonstrate that as on date th e opposite party No. 2’s possession on the suit land is founded on the judgment and order dated 26.3.2007 and the decree dated 24.4.2007 passed in counter-cla im No. 2/2004 and the sale deed dated 3.3.2009 as an yield of the proceeding in Title Execution Case No. 6/2007. Though the above judicial determination has bee n put to challenge in Title Suit No. 96/2011, the suit being at the preliminary stages, it would be wholly inexpedient to make any observation with regard to th e merit of the averments made in the plaint. This is more so as it is submitted at the Bar that no written statement has yet been filed by any of the defendants therein. Without making any comment on the conclusion of the learned Lower Appell ate Court with regard to the maintainability of the appeal, it would suffice to mention that no judicial intervention by way of any order of restraint vis-a-vis the use and enjoyment of the suit property by the opposite party No.2 at this s tage, having regard to the present materials on record, is called for. As it is submitted that the opposite party No.2 does not contemplate to alienate the suit property immediately, the petitioner’s alarm in this regard is also not well fo unded at the moment. In the above view of the matter, the petition lacks in merit and is dism issed. No costs.