Page No.# 1/10 GAHC010142892025 2025:GAU-AS:13158 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2121/2025 ALFRED RAHMAN S/O. LT. MAZIBUR RAHMAN, R/O. K.K. BHATTA ROAD, CHENIKUTHI, DIST. KAMRUP (M), GUWAHATI-3 VERSUS ATIQUR RAHMAN S/O. LT. MOFIJUR RAHMAN, R/O/ K.K. BHATTA ROAD, CHENIKUTHI, DIST. KAMRUP (M), GUWAHATI-3 Advocate for the Petitioner : MS. V RAI, JYOTISH DAS,MR A K RAI Advocate for the Respondent : , Linked Case : FAO/40/2025 ALFRED RAHMAN S/O. LT. MAZIBUR RAHMAN R/O. K.K. BHATTA ROAD CHENIKUTHI DIST. KAMRUP 9M) GUWAHATI-3 VERSUS ATIQUR RAHMAN S/O. LT. MOFIJUR RAHMAN Page No.# 2/10 R/O. K.K BHATTA ROAD CHENIKUTHI DIST. KAMRUP (M) GUWAHATI-3 ------------ Advocate for : MS. V RAI Advocate for : MR G Z AHMED appearing for ATIQUR RAHMAN BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 24.09.2025 Heard Mr. S. P. Roy, learned counsel for the applicant/appellant and Mr. G. Z. Ahmed, learned counsel for the opposite party/respondent. 2. This interlocutory application is preferred by the applicant for granting ad-interim injunction, restraining the respondent, his servants, employees, workmen, agents and family members, from doing any construction over the Schedule-D land, i.e. the suit land, in any manner and/or changing the nature and character of the Schedule-D property and from encumbering the Schedule-D, in any manner. 3. Mr. Roy, leaned counsel for the applicant, submits that the applicant, as plaintiff had instituted a title suit, being Title Suit No. 569/2024, for declaration, recovery of possession and permanent injunction, against the respondent/defendant; which is pending in the Court of the learned Civil Judge (Sr. Division), No.-2, Kamrup (M), Guwahati (‘Trial Court’, for short). In the said title suit, the applicant, as appellant/plaintiff, had filed an application under Order 39 Rule 1 & 2 of the CPC, for ad-interim injunction; upon which, Misc. (J) Case No. 982/2024, has been registered. Then after Page No.# 3/10 hearing both the parties on the injunction application, the learned Trial Court, vide impugned order dated 13.06.2025, was pleased to reject the application filed by the appellant/applicant, by vacating the ad-interim order, dated 30.10.2024; whereby, both the parties were directed to maintain status-quo, in respect of the suit land. Thereafter, the applicant herein, as appellant, preferred one FAO, being FAO No. 40/2025, before this Court; challenging the order dated 13.06.2025, and the same has already been admitted and notice has been issued to the respondent and pending the appeal, the present interlocutory application is being preferred; seeking the relief mentioned herein above. 3.1 Mr. Roy further submits that immediately after vacation of the ad- interim order, dated 30.10.2024, vide impugned order dated 13.06.2025; the respondent/opposite party herein had started construction over the suit land and casted one slab, and in support of his submission, Mr. Roy has produced some photographs of the suit land before this Court, and on the basis of the same, Mr. Roy submits that there is a requirement of staying further reconstruction over the suit land, otherwise the nature and feature of the suit land will be changed; and if such a situation is allowed to happen, then the appeal, being preferred by the appellant in this Court, would become infructuous; and therefore, Mr. Roy has contended to allow this application. 3.2 In support of his submission, Mr. Roy has referred to a decision of this Court in the case of Bindeshwar Narayan Singh and Others Vs. Managing Committee, Shri Sundarmal Hindi High School and Others, reported in AIR 1982 Gau 69, more specifically, to paragraph No. 12 of the said decision. Page No.# 4/10 4. On the other hand, Mr. G. Z. Ahmed, learned counsel for the opposite party, has vehemently opposed the application. He submits that the opposite party herein is in possession of the suit land by virtue on registered agreement and he had started construction only when the ad- interim order dated 30.10.2024 was vacated, vide order dated 13.06.2025; and that the respondent herein had already obtained a No Objection Certificate (NOC) from the Gauhati Municipal Corporation, Guwahati (GMC) on 02.06.2022, and only after obtaining such permission and approval from the GMC, Guwahati, the respondent herein had started construction over the suit property and as such, the learned Trial Court has rightly vacated the ad-interim injunction order, passed by it earlier. 4.1 Mr. 4.1 Mr. Ahmed further submits that the father of Late Mafizur Rahman, namely, Late Majahar Hussain, was the original owner of a plot of land measuring 1 Bigha and 4 Kathas and 09 Lechas, covered by KP Patta No. 230, Dag No. 359, of Village Sahar Guwahati part-7, under Mouza- Ulubari; and subsequently, in terms of a registered Agreement for Family Settlement, being deed No. 7521/2005, dated 21.06.2005, entered between Md. Mafijur Rahman and Md. Majirul Hussain, the said plot of land came to the share of Md. Mafijur Rahman and he became the absolute owner and possessor thereof; and Late Mafijur Rahman is the grandfather of the appellant/applicant and the father of the respondent/opposite party. It is also stated that in terms of the family agreement, dated 21.06.2005, the father of the applicant/appellant became the owner of a plot of land measuring 6.29 Are, i.e., 2 Katha and 7 Lessa, covered by the aforesaid Dag No. 359 of KP Patta No. 230; and accordingly, the name of the petitioner’s father was mutated in the revenue records, vide an order dated Page No.# 5/10 11.04.2014; and in the said order dated 11.04.2014, the mutation was erroneously shown to be done on the basis of a sale deed, instead of the Agreement for Family Settlement, dated 21.06.2005; which was also subsequently erroneously recorded in the Jamabandi. Thereafter, the respondent/opposite party applied for correction of the said mistake before the concerned revenue authorities, and such corrections were allowed, vide order dated 19.12.2024 and consequently, the Jamabandi was also corrected in terms thereof. Thereafter, in terms of the Agreement for Family Settlement, dated 21.06.2005, he became the owner of a plot of land measuring 3 Kathas and 5½ Lechas, covered by the aforesaid Dag No. 359 of KP Patta No. 230; and the Schedule A and Schedule B, appended to the Interlocutory Application, is incorrect and the correct description of the plot of land is described in the Annexure-C of the Agreement for Family Settlement, dated 21.06.2005; and in terms of the Agreement for Family Settlement, dated 21.06.2005, Md. Rezibur Rahman became the owner of a plot of land measuring 2 Kathas and 15.5 Lechas of the aforesaid Dag No. 359 of KP Patta No. 230 and subsequently, he also obtained separate Patta, being Patta No. 632 and Dag No. 888; in respect thereof, in view of an order dated 22.11.2022, passed by the Circle Officer, Guwahati Revenue Circle, Kamrup Metro; and that the boundary of the suit land is properly described in Annexure-C of the Agreement for Family Settlement, dated 21.06.2005. Mr. Ahmed also submits that the father of the present applicant had filed one writ petition, being WP(C) No. 2134/2020, before this Court and subsequently, he had withdrawn the same; and in the said writ petition, he did not make a single averment in respect of the suit land, being illegally occupied by the respondent/opposite party herein; and that Page No.# 6/10 the present application is being filed with mala-fide intention and that there is no merit in the same; and under such circumstances, it is contended to dismiss the application. 5. Having heard the submissions advanced by the learned counsel for both the parties, I have carefully gone through the application and the documents placed on record and also perused the impugned order, dated 13.06.2025 and the ad-interim order dated 30.10.2024. 6. It appears that vide ad-interim order dated 30.10.2024, the learned Trial Court had directed both the parties to maintain status-quo over the suit property, as on that day, having found prima-facie case, the balance of convenience and the irreparable loss, which are basic requirements for granting temporary injunction, in favour of the applicant. Thereafter, vide impugned order dated 13.06.2025, the learned Trial Court has vacated the order dated 30.10.2024, by which; it had directed the parties to maintain status-quo over the suit property. 7. While arriving at such a finding, the learned Trial Court has held that – “The allegation of the petitioner against the OP is that the OP demolished the boundary wall and dispossessed the petitioner from the suit land and started erecting RCC pillars on it. As per the petitioner, the schedule A and B land is divided by a boundary wall. The petitioner produced photographs in support of his allegation. The OP denied such act and produced photograph showing existence of the boundary wall. The photographs of both sides do not show demolition of any wall. It is pertinent to mention that although the petitioner averred that the suit land, which is a vacant land, is part of schedule A Page No.# 7/10 land but while describing the Schedule A land, there is no mention of the suit land measuring 18 ft. x 41 ft. and, therefore, the petitioner has not sought declaration of his right over the suit land. The schedule A land described in the plaint is as follows:- All that a plot of land measuring 2K 7L covered by being part of Dag No.359 of K.P patta No. 230 of village Sahar Guwahati, 7th Part, Mouza - Ulubari, District - Kamrup along with the First and Second floors each measuring 980 sq.ft. of the RCC building under Holding No. 205 situated at K.K. Road, Chenikuthi, Guwahati-03, House No.32, excluding the ground floor flat of the three storied RCC building and bounded as follows:- NORTH : Land of Md. Atiqur Rahman SOUTH : K.K.B. Road EAST : Private road used by Md. Atiqur Rahman and Md. Rezibur Rahman WEST : Private Drain and land of Shri .Robin Talukdar" 8. The learned Trial Court also went on to observe that as averred by the petitioner/applicant himself, the suit land is on the northern side of the three storied RCC building and the Schedule ‘A’ land, whereby, the boundary of the Schedule A land shows land of the OP on the northern side of the Schedule ‘A’ land; and it is also seen that while describing the Schedule ‘A’ land, there is no mention about the vacant land measuring 18 ft. x 41 ft., i.e., the suit land, as part of Schedule ‘A’ land. The learned Trial Court had also found that the petitioner is not in possession of the suit Page No.# 8/10 land. In such a scenario, the learned Trial Court formed an opinion that the petitioner had failed to establish a prima-facie case in his favour. It had also found that the other two principles are also not in favour of the petitioner and therefore, it had recalled the interim order, dated 30.10.2024. 9. This Court has carefully examined the aforementioned finding of the learned Trial Court in the light of the arguments, so advanced by the learned Advocates of both the parties, and also in the light of the pleadings and the documents placed on record. And this Court finds that the learned Trial Court had rightly found no prima-facie case in favour of the petitioner/applicant. 10. It appears that the applicant herein, is not in possession over the suit land. The averment of demolition of the boundary wall is also belied by the photographs, so produced by both the parties. Besides, the suit land has not properly been described in the Schedule ‘A’; and the applicant has also not sought for declaration of his right, title and interest over the suit land, described in the Schedule D; and there is no mention about the vacant land measuring 18 ft. x 41 ft., i.e., the suit land, as part of Schedule ‘A’ land. 11. Thus, in view of the submissions advanced by the learned counsel for both the parties and also in view of the materials placed on record, this Court is of the view that the appellant/applicant herein, has failed to demonstrate existence of a prima-facie case and also the balance of convenience and the irreparable loss in his favour and under such circumstances, this Court is of the view that no case for granting temporary injunction is made out. 12. I have carefully gone through the decision referred by Mr. Roy, Page No.# 9/10 learned counsel for the applicant. In Paragraph No. 12 of the aforesaid decision, a Co-ordinate Bench of this Court has held that where the sole object of the suit is protection by means of an injunction, to withhold the temporary injunction, may practically decide the cause in favour of the defendant, without giving the plaintiff an opportunity to establish the truth of the case made by his plaint. It is true that the Court will not so interfere if it thinks that there is no real question between the parties, but assuming that there is a substantial question to be decided; it will preserve the property until such question can be regularly disposed of where a perpetual injunction is sued for and the plaintiff applies for a temporary injunction, the Court should grant the temporary injunction, if the effect of not granting such an injunction will deprive the plaintiff forever of the right claimed by him in the suit. The Court should be satisfied that the matter emergent and its immediate assistance is required before it will issue a temporary injunction, for there is a possibility of irreparable injury being caused to the party. If an injunction is prayed for either before or at or after the hearing of any case or matter, to prevent any threatened or apprehended waste or trespass, such an injunction may be granted, if the Court shall think fit and proper. It may not by itself, be a sufficient reason for the issue of a temporary injunction that the suit would be infructuous, if it did not issue, but there may be causes where refusal to grant temporary injunction pending disposal of the suit, would make the success at the close of the suit, but a barren and worthless victory. 13. There is, however, no quarrel at the Bar about the proposition of law, so laid down in the aforementioned case. But, in view of the facts and circumstances discussed hereinabove, this Court is of the view that the Page No.# 10/10 proposition of law, laid down in the aforementioned case would not advance the case of the applicant. 14. Though, there appears to be a prima-facie case to go for trial, but the applicant has failed to demonstrate existence of a prima-facie case to grant temporary injunction, under Order 39, Rules 1 & 2 of the CPC, read with Section 151 of the CPC; and that the balance of convenience, and irreparable loss, are also in his favour. 15. Accordingly, in terms of the above, this interlocutory application stands disposed of. JUDGE Comparing Assistant