Page No.# 1/10 GAHC010056212023 2025:GAU-AS:6248 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/31/2023 ABDUL MATIN AND 5 ORS. S/O- LATE MAHMAD ALI, R/O- VILLAGE KANKALASH, P.O. BHANGABAZAR, P.S. BADARPUR, DISTRICT KARIMGANJ, ASSAM, PIN- 788805 2: ABDUL MUHIM S/O- LATE ABDUL JALIL R/O- VILLAGE KANKALASH P.O. BHANGABAZAR P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 788805 3: ABDUL SALIM S/O- LATE ABDUL JALIL R/O- VILLAGE KANKALASH P.O. BHANGABAZAR P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 788805 4: ABDUL MUNIM S/O- LATE ABDUL JALIL R/O- VILLAGE KANKALASH P.O. BHANGABAZAR P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 788805 5: LUTFUR RAHMAN S/O- LATE ABDUL JALIL Page No.# 2/10 R/O- VILLAGE KANKALASH P.O. BHANGABAZAR P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 788805 6: MUSTAFA KHANAM W/O- LATE ABDUL JALIL R/O- VILLAGE KANKALASH P.O. BHANGABAZAR P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 78880 VERSUS THE EXECUTIVE ENGINEER AND ANR. PWD (ROADS) AND KARIMGANJ RURAL ROAD DIVISION, KARIMGANJ, P.O. AND P.S. KARIMGANJ, DIST.- KARIMGANJ, ASSAM, PIN- 788710 2:THE CIRCLE OFFICER BADARPUR REVENUE CIRCLE P.O. AND P.S. BADARPUR DISTRICT KARIMGANJ ASSAM PIN- 78880 Advocate for the Petitioner : MR. P D NAIR, MR. H ROHMAN,MR G ALAM,MR S R A NASER Advocate for the Respondent : GA, ASSAM, SC, PWD BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 19-05-2025 Heard learned counsel Mr. G. Alam for the petitioner Nos. 1. Abdul Matin, 2. Abdul Muhim, 3. Abdul Salim, 4. Abdul Munim, 5. Lutfur Rahman and 6. Mustafa Khanam, who have filed this application under Section 115 read with Page No.# 3/10 Section 151 of Code of Civil Procedure, 1908 (CPC for short). 2. The Executive Engineer, PWD (Roads) & Karimganj Rural Road Division and the Circle Officer, Badarpur Revenue Circle are arrayed as respondent Nos. 1 and 2. 3. Heard Ms. S. Sarma, learned Standing Counsel, PWD for respondent No. 1 and Mr. T.R. Gogoi, learned Government Advocate for the respondent No. 2. 4. The petitioners have challenged the impugned judgment and order dated 14.02.2023 passed in Misc. Appeal No. 02 of 2019 by the learned District Judge, Karimganj, dismissing the appeal and rejecting the temporary injunction and affirming the order dated 20.06.2019 in Misc. Case No. 49/2018 passed by the learned Civil Judge, Karimganj. 5. The petitioners have instituted a title suit being TS no. 25/2018 in the Court of the Civil Judge at Karimganj which is at present renumbered as TS No. 57/2021 and which is pending in the Court of the Munsiff No. 2 at Karimganj. The suit was inter-alia for a declaration that the defendants Nos. 1, 2 and 3 had illegally and by exercising force demolished the pucca boundary wall standing in the land described in Schedule II of the plaint. The petitioner No. 1, the predecessors of the petitioners Nos. 2 to 6 and the performa defendant Nos. 10 to 16 of the aforementioned title suit are the owners of the plots of land described in Schedule I of the plaint, which were purchased by the registered Sale Deed Nos. 5094 dated 25.07.1975 and 3050 dated 01.10.1998. 6. It is contended that out of the land described in Schedule I, a parcel of land measuring 0.13 acre, covered by Dag No. 388 (old)/405(new) and Patta Page No.# 4/10 No. 471, Plot of land measuring 0.73 acre covered by Dag No. 387 (old)/406(new) and Patta No. 209 and, Plot of land measuring 0.47 acre covered by Dag No. 384(old)/408(new) and Patta No. 325, are all of Khatian No. 1147/1146 under Pargona Chapghat, Mouza Kankalash Part II, District – Karimganj, Assam. 7. 7. This land was partitioned amicably between the petitioners and the defendant No. 9 along with other land amongst themselves by executing the partition Deed No. 720 dated 23.07.1996. In the month of January, 2000, the petitioners and Abdul Aziz/defendant No. 9 constructed a pucca boundary wall in the western as well as in the northern side of the Schedule I land and the boundary wall falls in Dag Nos. 384(old)/408(new) 387(old)/406(new) and 388(old)/405(new) under the same Mouza Kankalash Part II and is described in the Schedule II of the plaint. 8. This was the homestead boundary wall and the village path is towards the northern side of the homestead of the petitioners. It is submitted that one Akidath Hussain has his homestead abutting this village path, which implies that the village path runs between the homestead of the petitioners as well as that of Akidath Hussain. It is further submitted that the village path falls under that Dag No. 383(old)/306(new) of the same Mouza Kankalash Part II. 9. It is averred that on 31.03.2018, the respondents along with its staff, in presence of some local people visited the spot and proposed to construct the village path over the land in Dag No. 306 of Mouza Kankalash Part II. The Page No.# 5/10 petitioners then requested for demarcation of the suit land as well as the homestead of Akidath Hussain before construction of the village path but the respondents refused to demarcate the same. 10. On the 11.04.2018, the respondents along with their staff and police personnel attended the spot and demolished the petitioners’ pucca boundary wall standing over the petitioners’ land described in Schedule II of the plaint along with other contiguous boundary wall and the boundary wall of Akidath Hussain despite serious objection raised by the petitioners. The petitioners have stated that they did not encroach the land of Dag No. 383(old)/306(new) of Mouza Kankalash Part II, rather the boundary wall was constructed over their land in Dag Nos. 384(old)/408(new) and Dag No. 387(old)/406(new) and 388(old)/405(new) under the same Mouza Kankalash Part II. 11. It is further contended that the respondents started broadcasting and threatening the petitioners that they would construct the village path by encroaching the schedule II land. 12. It is submitted by the learned counsel for the petitioners that the village path is not over the petitioners’ land. It is over the new Dag No. 306, but the petitioners’ boundary wall was illegally demolished by the respondents to construct the village path. It is further submitted by the learned counsel for the petitioners that an information was forwarded to the learned Government Advocate by the respondents on 28.04.2023 stating that the petitioners are found in the possession of land appertaining to Dag No. 408, Patta No. 325, which is a patta land, whereas one Akidath Hussain encroached an area of land measuring 1400 square feet covered by Dag No. 306, Patta No. 60 of Mouza - Page No.# 6/10 Kankalash Pt – II, which clearly reveals that the petitioners’ boundary wall has been wrongfully dismantled by the respondents, as Akidath Hussain was in wrongful possession of khas land. 13. The report also reveals that Akidath Hussain encroached upon the area of the village path by constructing a pucca wall. Then, the Circle Officer of Badarpur Revenue Circle, Badarpur submitted a report to the Deputy commissioner, Karimganj along with the ISTOFANAMA. The eviction was carried out and the land of village path was vacated by evicting Akidath Hussain. The petitioners have therefore prayed for an ad-interim injunction to restrain the respondents from dismantling this wall to construct the path as the petitioners are not in possession of the land appertaining to Dag 306. 14. This report forwarded by the Circle Officer, Badarpur Revenue Circle to the Government Advocate, is marked as X and will form a part of this record. 15. Learned Government Advocate for respondent No. 2 has raised serious objection against this petition stating that there is no land which has been described and referred to as the suit land in the plaint. The alleged suit land was described in the plaint with imaginary boundaries so as to illegally include the village path situated over the Government khas land and to encroach the path situated over Dag No. 306. The northern boundary of the alleged suit land as per description in the plaint, has been illegally and falsely extended to soothe their purpose and to grab the land of the village path over the Government khas land. The quantum and description of the land as per averments in the plaint and in the records, does not tally and therefore, no executable order can be passed. Page No.# 7/10 16. The petitioners have approached this Court with ulterior motive. The suit was brought up against the respondents for creating obstruction on development of the village path running through the Government khas land covered by Dag No. 306 to the disadvantage of the villagers. The land of Dag No. 306 extends to the further south of the previously existing wall by nearly 1 ½ half feet and to further south of this land. There is also an Anganwadi Centre, which clearly proves that the alleged northern boundary wall was not in fact a boundary wall but was constructed illegally over the Government khas land in Dag No. 306. 17. After considering the submissions at the bar, it could be understood that although the petitioners have stated that the land covered by Dag No. 306 including the village path has not been occupied by him, yet the petitioners have allegedly encroached over the Government khas land by misrepresenting the boundaries of the lands described under Schedule I and II of the plaint. It is further submitted that the allegation of land being encroached by Akidath Hussain has also been averred in the written statement filed by the respondents. Therefore, the submissions of the report of the Circle Officer dated 28.04.2023 and marked as X will be of no relief as has been stressed by the petitioners. 18. I have considered the submissions at the bar with circumspection. 19. Initially, in Misc. Case No. 49/2018 vide order dated 25.04.2018, the learned Civil Judge passed an interim order restraining the opposite parties from demolishing the boundary wall of the suit land described in the Schedule of the plaint. After hearing both the parties, it was observed by the learned Trial Court Page No.# 8/10 that admittedly there was no demarcation of the suit land to carve out the dispute regarding the construction of new path. However, vide the impugned order dated 20.06.2019, the Civil Judge rejected the prayer for temporary injunction to debar the respondents from demolishing the boundary wall. 20. It was observed by the learned Civil Judge that the Circle Officer furnished information to the petitioners dated 23.08.2018 that the land covered by the Dag No. 306 is agricultural land under Miadi Patta No. 60 and was in the name of Abdul Khalique. Later on, the defendants/respondents including the Circle Officer stated in the written statement annexed with a copy of information of land, mentioned that the land covered by Dag No. 306 is an agricultural class land and which is a khas land. As such, there is contradictory opinion drawn by the Circle Officer. 21. Learned Government Pleader submitted that the suit path is being used by the local people for ingress and egress from their homestead to the PWD Road. The plaintiffs/petitioners have already encroached a substantial portion of the suit path by constructing boundary wall and reducing the breadth of the path. Consequentially, the villagers have been suffering, more particularly, during the rainy season. 22. The plaintiffs/petitioners have specifically admitted that the village path is situated in the northern side of their homestead land and they are not pattadars of the land covered by Patta No. 60 and Dag No. 306. The Circle Officer however obtained consent of the respective pattadars and the pattadars have voluntarily signed relinquishment of the land in favour of the public road. The boundary wall was not constructed in the year 2000 and the petitioners failed to Page No.# 9/10 submit any documents relating to permission for construction of the boundary wall from the respective gaon panchayat. 23. It was held that the Government of Assam has substantial interest over the subject matter as two or three villages have been using the suit path. Conflict is prevalent between the parties and two and three villages and the Government, regarding encroachment of public road by the petitioners. Thereafter, the learned Civil Judge has observed that the Circle Officer has demolished the boundary wall of the plaintiffs/petitioners to clear the road encroached by the petitioners. 24. Against this order of the learned Civil Judge, the petitioners have preferred an appeal and vide order dated 14.02.2023 in Misc Appeal No. 02/2019, the learned District Judge, dismissed the appeal rejecting the prayer seeking temporary injunction. It was observed by the learned Appellate Court that admittedly the wall has already been demolished by the opposite parties prior to institution of the petition through which the petitioners sought temporary injunction. It was held that the act of demolishing the wall is already complete and there is nothing to restrain the respondents. It was held by the learned District Judge that the legality of demolition of the boundary wall is subject to the consideration on merit and on receipt of due evidence from both the sides in the original suit and proof of the said demolition being illegal on merit shall entitle the petitioners to the relief incidental to such proof. 25. The respondents have allegedly threatened to demolish the boundary wall and to construct a path by encroaching the petitioners’ land, but on such threat, pre-empted relief cannot be granted. Page No.# 10/10 26. It has been correctly held by the learned District Judge that it is apprehended that the village path on the adjoining land is being used by the villagers for movement. It has been correctly held by the learned District Judge that it is apprehended that the village path may be narrowed down if the opposite parties are restrained from constructing any village path. The villagers may during the rainy season face inconvenience. 27. The boundary wall has already been demolished by the respondents. Constructing a village path also falls under the public policy, but by encroaching a patta land and constructing a village path is also not justifiable. The existing village path is admittedly used by the villagers and any restrain order may be disadvantageous to the villagers. This tilts the balance of convenience in favour of the respondents. Whether the land is a patta land belonging to the petitioners is to be decided through the merits and evidence in the title suit. 28. This Court cannot be oblivious of the fact that the boundary wall of the petitioners has already been demolished by the respondents. So at this juncture, this Court is hesitant to pass any order, restraining the respondents from constructing a village path over the Government khas land. Thereby, this application under 115 of CPC is dismissed at this stage. 29. Send back the Trial Court Records. JUDGE Comparing Assistant