The record is taken up for passing the necessary order. Perused the petition under Order 39 Rule 1 with section 151 of the 1908 Code of Civil procedure, and the supporting affidavit, written objection thereto, submitted documents, and the record. On such perusal, it appears to the court that this is a suit for recovery of possession and ejectment. The instant case requires a discretionary decision to be made upon a prayer by the plaintiff side for an order of temporary injunction against the defendant side.
Substance of the Petition:
The plaintiff’s case, in a nutshell, reveals that
the reordered tenants of the RS Khatian No. 127 are the plaintiff No. 1-2 along
with Gias Uddin Sarkar. The recorded tenant Giyas Uddin Sarkar’s son one
Shamsul Alam Sarkar transferred some land to the defendant No. 01 and others. Another
son of Gius Uddin named Robiul Islam alias Nasir Uddin also transferred some
land to the defendant No. 01 and others. In both
cases, the plaintiff No. 1-2 brought in two pre-emption cases (61/94; 62/94),
which was granted eventually; and the payment made to the court was withdrawn
by defendant No. 01 of the instant suit. Consequently, Plaintiff No. 01-02 of
the suit had become in possession of the land, which was once transferred to
the defendant No. 01 and others, as aforesaid.
In addition, another RS recorded tenant Siraj Uddin Sarkar transferred some of his land to his three sons (Plaintiff No. 03-05) through three deeds. Furthermore, RS recorded tenant also transferred his some of land to his son, the plaintiff No. 06. Thus, the plaintiffs had been in possession of the suit land since then. The plaintiffs claim that the defendants forcibly dispossessed them from the land specified in the schedule to the suit on 06/06/2020 by constructing structure(s) made of mud walls and tin sheets. Consequently, the suit was instituted as such. Thereafter, after demolishing the mud wall in question on 26/01/2021, the defendant side started preparing for building pakka structure(s) and gathered construction materials thereon. Upon resistance by the plaintiff side, the defendants intimidated the plaintiffs and kept continuing the same. The very injunction petition is hereby placed before the court for restraining the defendants from their continuing encroachment.
Objections of the Opposite Party:
The defendants submitted a written objection
thereto, the brief of which encapsulates that the averment of the plaintiffs on
the fact of the aforesaid forceful dispossession from the land specified in the
schedule to the suit by constructing structures and thereafter preparation for
building pakka structure(s) and gathering construction materials is totally fake
and falsified. The fact of the resistance by the plaintiff side caused towards the
defendants, who intimidated the plaintiffs and kept continuing the construction
on the land in question, is fabricated and has been brought into being for
causing damages to the defendant.
However, the defendant side admits the RS recorded tenant and their share and possession therein. The recorded tenant Giyas Uddin Sarkar’s son one Shamsul Alam Sarkar transferred some land to the defendant No. 01 and others. Another son of Gius Uddin named Robiul Islam alias Nasir Uddin also transferred some land to the defendant No. 01 and others. In both cases, the plaintiff No. 1-2 brought in two pre-emption cases (61/94; 62/94), which was granted eventually. The defendants claim that the plaintiffs never took any legal recourse for taking the pre-empted suit land in their possession; despite their pre-emption cases were allowed. Therefore, the defendants have been in exclusive possession of the suit land in question as such. The so called structures were built even prior to the suit was instituted before this court. Hence, due to lacking of prima facie case and possession, inter alia, the petition is liable to be dismissed.
Point for determination:
Whether the plaintiff may get the relief prayed for?
Discussions and Decisions:
No doubt, the so-called trinity of principles on which rests the foundation of any order of injunction is the cornerstone of a party’s pleadings. On careful perusal of the pleadings’ averment and the respective petition along with submitted documents, including deed No. 1456/12, and 1459/12, Khatians, and the copies of documents relating to two pre-emption cases (61/94; 62/94); etc., it conspicuously appears to the court that the plaintiff shows some material facts which obviously carry him to the trial with his suit. In the consideration that a finding on 'prima facie case' would be a finding of fact, a substantial question has already been raised bona fide, which needs investigation and a decision on merits. Therefore, since the plaintiff side demonstrates a ‘good and arguable case’ in his favor by raising a fair question for determination; it is needless to put that a prima facie case is vividly established (not to be confused with prima facie title). However, the defendants’ robust assertion of facts fairly outlines some considering issues, but they in fact legally stand beyond the domain of the instant context.
02. As this is a suit for recovery of possession and ejectment, it would be trite to say that the plaintiff side is not in the possession of the land in question. The plaintiff states in his respective petition with reference to the averment of the plaint that while the plaintiffs had been in possession of the suit land, the defendants forcibly dispossessed them from the land specified in the schedule to the suit on 06/06/2020 by constructing structure(s) of mud walls and tin sheets. In the aftermath, as it is claimed, after demolishing the mud wall in question on 26/01/2021, the defendant side started preparing for building pakka structure(s) and gathered construction materials thereon. In support of their averments as such, some photographs are placed before the court for its cognizance. These images are found to evidently form a transition of the construction from Kachcha to Pakka structure(s). To note here, one of defendants was also present in the courtroom and the court asked him for the contrary explanation to those images if any. Being asked for as such, he certified such a transformation and admitted that construction has already been stopped after the notice of the court’s interim order was serviced upon them. Accordingly, the defendant side cogently appears to have currently been in possession of the suit land in question. But, without taking further evidence at trial, it is not opportune to decide whether the plaintiffs were in possession of that land before their alleged dispossession.
03. The next point is the balance of convenience and inconvenience, meaning a ‘comparative hardship or mischief’ that is likely to be caused to a party if the injunction is refused, will be greater than that it is likely to be caused to the other party if the injunction is granted. In applying this principle, the Court has to weigh the amount of substantial and probable injury to either party. Apart from a prima facie case and a balance of convenience, the petitioner must establish also a case of ‘irreparable injury’ to occur to him if no injunction were granted. As the aforesaid narrative vividly discloses the fact of pakka construction by the defendant side on the disputed land, it appears that if they are not stopped from the continuing construction, the nature of the land might be changed or the purpose of the suit be frustrated. Conversely, financial hardship might be caused to the opposite parties if construction is restrained in the suit land; but that could not be construed as irreparable injury. In addition, dispossession from land always tends to irreparable loss, which cannot be adequately remedied by damages. The issue is, in fact, to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Therefore, as the principle governing injunction as well as status quo is on the same footing, it is the court’s view that the balance of convenience appears to be in the preservation of status quo.
04. It is further well-conversant that the phrases `prima facie case, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances; so always is to be hedged with sound exercise of judicial discretion to meet the interest of justice. Therefore, while making decisions regarding injunction, the Court also ought to be circumspect and look to the conduct of the party. So far as the instant suit is concerned, it transpires that the very injunction petition was filed when the defendant side was about to build any construction on the suit lands. Although an ad-interim order was made by the court against the defendant side, the work of construction by the latter had become greater in volume. As a result, it transpires that if the opposite party is not restrained in whatsoever manner, the petitioners would suffer irreparable loss and injury that cannot be compensated by way of damages.
Therefore, the court is of opinion that non-interference by the Court would result in irreparable injury to the party seeking relief and the petitioners need protection from the consequences of apprehended injury. Since the possession of the suit property is sufficiently ascertained and the opposite party has already started building pakka structure(s) and walls on the land in question, it thus appears to be expedient to maintain status quo so much the brick wall has been erected. Although it may be pertinent to do a local inspection to determine how much construction work is already done; but, in the present context, the materials available on record seem to be sufficient to infer that. As such, on considering all of the aforesaid appearing facts and weighing the competing possibilities of the likelihood of comparative injury, the court is of a view that the subject matter should be maintained in status quo
Hence, it is ordered
that the parties to the suit are hereby ordered to maintain status quo, as appeared to date in respect of the suit, landed property scheduled to the plaint till further order. However, the defendants may protect all the raw materials of construction (if any) from being damaged by availing every usual means.
Notify Ld. Advocate(s) for the parties to the suit. The
next date is fixed on 03.10.2021 AD for ADR.