Page No.# 1/7 GAHC010269622024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/529/2024 SRI PRASANTA RAJKHOWA AND 4 ORS S/O- HEMA RAJKHOWA, R/O- VILLAGE NO-2 PAKADOL, P.O- PAKADOL GANDHIA, P.S BIHPURIA, DIST- LAKHIMPUR, ASSAM 2: LALIT RAJKHOWA S/O- LATE DARBARI RAJKHOWA R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 3: LEELA DAS S/O- LTE BHUTUKA DAS R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 4: PRADIP SHARMA S/O- LATE BISWA SHARMA BARUAH R/O- VILLAGE LAHOHIAL CHARIALI P.O- LAHALIAL P.S BIHPURIA DIST- LAKHIMPUR ASSAM Page No.# 2/7 5: CHENI GOWALA S/O- LERELA GOWALA R/O- VILLAGE BENGENATI P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSA VERSUS SRI BHADESHWAR DAS AND 6 ORS S/O- LATE NABIN DAS, R/O- VILLAGE NO-2 PAKADOL, P.O- PAKADOL GANDHIA, P.S BIHPURIA, DIST- LAKHIMPUR, ASSAM 2:MADHAB DAS S/O- LATE NABIN DAS R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 3:TAPAN RAJKHOWA S/O- MONGOLA RAJKHOWA R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 4:ROMA RAJKHOWA S/O- MOHAN RAJKHOWA R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 5:BHODIA DAS Page No.# 3/7 S/O- PETUA DAS R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 6:LEELA DAS S/O- LATE PETUA DAS R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSAM 7:RAJIB DAS S/O- LATE RUP SINGH DAS R/O- VILLAGE NO-2 PAKADOL P.O- PAKADOL GANDHIA P.S BIHPURIA DIST- LAKHIMPUR ASSA Advocate for the Petitioner : MR H DAS, MS. S DUTTA,MR. P GOGOI Advocate for the Respondent : MR. A GANGULY (ALL RESPONDENTS), MR. A DHANUKA(ALL RESPONDENTS),MR. A DUTTA(ALL RESPONDENTS) BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 18.02.2025 Heard Mr. H. Das, learned counsel for the petitioner Nos. 1. Sri Prasanta Rajkhowa, 2. Sri Lalit Rajkhowa, 3. Sri Leela Das, 4. Sri Pradip Sharma and 5. Page No.# 4/7 Sri Cheni Gowala, who have filed this application under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, 1908 (CPC for short) challenging the order dated 06.12.2024 passed by the learned Civil Judge (Senior Division) Lakhimpur in Misc. (J) Case No. 27/2024 arising out of Title Suit No. 33/2024 filed by the petitioners under Order XXXIX Rule 1 and 2 of CPC read with Section 151 of CPC. 2. It is submitted on behalf of the petitioners that the petitioners have a good case and the petitioners have been in possession of the beels/fisheries, which is a subject matter of this case. 3. Sri Dharmeswar Borah, Sri Upen Borah, Sri Kanak Borah, Sri Kinaram Borah, Sri Mulan Borah, Sri Bijoy Borah, Sri Bipin Borah, Sri Nil Borah, Sri Anil Borah, Sri NarenKalita, Sri Bhriguram Koch and Sri moon Saikia (Koch) who are arrayed as proforma defendants in Title Suit No. 33/2024 are the owners of the fisheries/beels leased out to the petitioners of this case. 4. However, thedefendants/respondents Sri Bhadeshwar Das, Sri Madhab Das, Sri TapanRajkhowa, Sri Roma Rajkhowa, Sri Bhodia Das, Sri Leela Das and Sri Rajib Das have tried to restrain the petitioners from fishing in the fisheries/beels. 5. It is submitted by the learned counsel Mr. A. Ganguly for the respondents that the impugned order dated 06.12.2024 passed by the learned Civil Judge (Senior Division) Lakhimpur, North Lakhimpur in connection with Misc (J) Case No. 27/2024 requires no interference as the order was judicially passed and moreover, this petition against an order passed under Order XXIX Rule 1 and 2 Page No.# 5/7 read with Section 151 CPC is not maintainable. The petitioners ought to have preferred an appeal against the impugned order dated 06.12.2024 under Order XLIII Rule 1(r) of the CPC. 6. I have considered the submissions at the bar with circumspection. 7. It could be deduced from the submissions and from the order passed by the learned Civil Judge (Senior Division that the petitioners are running two fisheries/beels ad measuring about 13 Bighas 4 Kathas 16 Lechas (described in Schedule A of the petition/plaint). They are the lawful tenants of the proforma defendants and have been lawfully running the aforementioned fisheries/beels since 2009 and their livelihood depends on the fisheries/beels (two beels). 8. The attention of this Court was also drawn towards the FIR lodged against the petitioners by the respondents on 24.07.2023 with the police at Bihpuria Police Station. Subsequent thereto, a Non-FIR case being Non-FIR PS Case No. 34/2023 under Section 107/145 of Code of Criminal Procedure, 1973 (CrPC for short) was also registered and the same was forwarded to the Executive Magistrate, North Lakhimpur for initiation of proceedings under Section 107/145 of CrPC. 9. It is further submitted by the petitioners that written statement have been submitted by the defendants and the proforma defendants Nos. 8 to 19 have submitted a no objection stating that the petitioners have been their tenants since the year 2009. 10. It is submitted that the learned Civil Judge did not consider the submission of the petitioners that this was a fit case to allow the petition for an Page No.# 6/7 order of temporary injunction and restrain the opposite parties, their agents/servants etc. from disturbing the peaceful possession of the schedule A land in any manner pending disposal of Misc. (J) Case No. 27/2024 and Title Suit No. 33/2024 and instead the learned Trial Court has erroneously issued notice. The petitioners are apprehending further disturbance on their peaceful possession of the fisheries/beels and they were thus aggrieved by the impugned order. 11. It is further submitted by the learned counsel for the respondents that this petition is not maintainable and appeal lies against an order under Order XXXIX Rule 1 and 2 of CPC which may be an order refusing to grant injunction or an order, allowing the prayer of injunction. Misc. (J) Case No. 27/2024 is fixed for service of notice and written objection by the respondents. At this juncture, it appears that it is not required for this Court to pass any order against the order of issuance of notice. The Court will definitely take into consideration the grievance of the petitioners after service of notice. The Trial Court has not passed any order refusing to grant injunction or an order, allowing the prayer of injunction. 12. The urgent nature of prayer for injunction has become infructuous due to efflux of time as this petition has been pending since 13.12.2024. This petition was filed on the ground that the Court without passing any order of interim injunction or status quo, issued notice vide order dated 06.12.2024 in connection with Misc.(J) Case No. 27/2024. The petition with prayer for injunction under Order XXXIX Rule 1 and Rule 2 of the CPC is pending in the Trial Court. Page No.# 7/7 13. The Trial Court has fixed this case for service report and for filing of written objection by the respondent. Thereby, the petitioner is directed to appear before the learned Trial Court and place his submission before the Court. The Court may pass necessary order which the Court deems fit and proper. JUDGE Comparing Assistant