Seen. Head. Perused the petition under Order 39 Rule 1 & 2 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 Partition, and the plaintiffs have obtained an order of ad-interim injunction against the defendant's side. The record is taken up for passing the necessary order.
The plaintiff’s case mainly reveals that the defendants are trying to construct pakka structures on the petition’s scheduled lands where is a graveyard for the plaintiff’s predecessor Ebaratullah’s spouse and daughter (Sohagi Bewa and Rokeya). But the defendants underscore another fact that tells the court that there is an apprehension that there is a real controversy as to the subject matter of the plaintiff’s claims. Both sides also lead some documents (RoRs, etc.) but they do not make the court well-informed to decide decisively. So, the court is of opinion that further hearing is necessary in this regard.
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, 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.
However,
as this is a suit for partition, it would be trite to say that as per the
record, both sides are in joint possession of the whole land scheduled to the
plaint. But the plaintiff states in his respective petition that he had been in
possession of the suit land, specifically the lands scheduled to the petition
at hands. However, it appears that, without having further materials relating
to the real-time position of those lands and the fact of the existence of the
graveyard, the court is of opinion that it is not opportune to decide whether
the plaintiffs or the defendants are in separate possession of that particular land.
But meanwhile, if they (parties) are not stopped from attempting to
dispossess or threating for dispossession, the nature of the land might be
changed or the purpose of the suit be frustrated. Conversely, financial
hardship might be caused to any party if any construction is built in the suit
land; that could be construed as irreparable injury. Since the possession of
the suit property is sufficiently ascertained to so far as the materials on
record suggest for a status quo position, it thus appears to be
expedient to maintain the status quo in
the present context. Therefore, on considering all of the aforesaid appearing
facts and weighing the competing possibilities of the likelihood of
comparative injury, it is the court’s view that the balance of convenience
appears to be in the preservation of the status
quo. As such, the court is of the view that the subject matter should be
maintained in the status quo meanwhile.
Hence, it is ordered that the order passed on 24/01/2022 is hereby
vacated. Moreover, the parties to the suit are hereby ordered to maintain, till further order, the status quo as appeared to date in respect of the suit landed
property scheduled to the petition for temporary injunction dated 24.01.2022.
Inform the Ld. Advocate(s) for the
parties to the suit of this order.
On perusal of the record, it transpires that defendants are yet to submit W.S. The next date is fixed on 23.05.2022 AD for further hearing on the petition for temporary injunction dated 24.01.2022 and W.S.