Rabin Dey Vs Lavita Das

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GAHC010122782025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(IO)/208/2025

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SMTI. LAVITA DAS

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W/O LATE KAUSIK DAS, R/O WARD NO. 5, MANGALDOI TOWN, P.O. AND P.S.- MANGALDOI, PIN-784125, DIST- DARRANG, ASSAM

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VERSUS

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ROBIN DEY

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S/O LATE SUKHRANJAN DEY, R/O WARD NO. 5, MANGALDOI TOWN, P.O. AND P.S.- MANGALDOI, PIN-784125, DIST- DARRANG, ASSAM

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Advocate for the Petitioner : MR. T R SARMA, DIPTI CHAKRAVARTY,MR. T K MISRA

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Advocate for the Respondent : MR. D A KAIYUM (FOR CAVEATOR),

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Linked Case : I.A.(Civil)/2054/2025

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RABIN DEY W/O LATE KAUSIK DAS R/O WARD NO. 5 MANGALDOI TOWN P.O. AND P.S.- MANGALDOI PIN-784125 DIST- DARRANG ASSAM

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VERSUS

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LAVITA DAS S/O LATE SUKHRANJAN DEY R/O WARD NO. 5 MANGALDOI TOWN P.O. AND P.S.- MANGALDOI PIN-784125 DIST- DARRANG ASSAM

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-----------Advocate for : MR. SURAJIT DUTTA Advocate for : MR. T K MISRA appearing for LAVITA DAS

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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Date : 03.09.2025

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Heard Mr. T.R. Sarma, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned Senior Counsel, assisted by Mr. D.A. Kaiyum, learned counsel for the respondent.

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2. In this petition, under Article 227 of the Constitution of India, read with Section 151 of the CPC, the petitioner has challenged the legality, propriety and correctness of the order dated 15.05.2025, passed by the learned Civil Judge (Junior Division) No. 2, Darrang, Mangaldai, in Misc. (J) Case No. 146/2013, arising out of Title Suit No. 137/2013, and also the order dated 26.05.2025, passed by the learned Civil Judge (Senior Division), Darrang, Mangaldai, in Misc. Appeal No. 7/2025.

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3. It is to be noted here that vide order, dated 15.05.2025, the learned Civil Judge (Junior Division) No. 2, Darrang, Mangaldai (‘trial Court’, for short)

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had directed to remove the tin-sheet fencing and tin-roof structures and any other constructions raised over the Schedule-‘B’ land after the status quo order passed by that court, which presently obstruct the ingress and egress of the plaintiff/respondent herein to his land described in Schedule-‘A’, and also directed the Circle Officer, Mangaldai Revenue Circle, along with Officer-In charge, Mangaldai Police Station, to ensure execution of the said order and to supervise the demolition activity, and also directed the petitioner herein to extend full cooperation during the execution process and for restoration of the path way within a reasonable period, and fixed the matter on 29.05.2025, for compliance report. It is also to be noted here that vide impugned order dated 26.05.2025, the learned Civil Judge (Senior Division), Darrang, Mangaldai (‘appellate Court’, for short) had rejected the application filed under Order 41 Rule 5 of the CPC, for staying the order dated 15.05.2025.

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4. Mr. Sarma, learned counsel for the petitioner submits that the impugned order, dated 15.05.2025, passed by the learned trial Court is being challenged in an appeal, being Misc. Appeal No. 7/2025, before the learned appellate Court, and the matter was admitted on 26.05.2025, however, the learned appellate Court had rejected the prayer to grant stay of the impugned order dated 15.05.2025. And therefore, the petitioner has approached this Court by filing the present revision petition.

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4.1. Mr. Sarma also submits that the petitioner is a widow and residing along with her minor daughter in a house situated over Schedule-‘B’ land measuring 1 katha 5 lechas, covered by Dag No. 572, under Periodic Patta No. 402 of Mangaldai Town, Part-II, under Rangamati Mouza, and the right, title and interest of her predecessor-in-interest, i.e. her Late husband, namely, Kaushik Das, over the aforesaid Schedule-‘B’ land was affirmed in a judgment and

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decree dated 27.06.2008, passed by the learned Munsiff No. 2, Darrang, Mangaldai, in Title Suit No. 38/1998 (old) and Title Suit No. 2/2007 (new), and the said judgment and decree was further affirmed by the learned Civil Judge, Darrang, Mangaldai, in Title Appeal No. 6/2008, vide judgment and decree dated 10.08.2012.

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4.2. Mr. Sarma further submits that if the said tin-house, situated over the Schedule-‘B’ land is demolished, then the petitioner and her minor daughter would be rendered homeless, as there is no place of stay for her and her daughter, and it will impair her right guaranteed under Article 21 of the Constitution of India.

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4.3. Mr. Sarma further submits that the tin-chali house was constructed when no stay order was operating and as such, the question of violation of the order passed by the learned trial Court as well as the learned appellate Court and also by this Court, does not arise, and that the Commission Report available on the record also supported the said fact. Mr. Sarma also submits that the land in question is in possession of the petitioner and that the plaint of the Title Suit No. 137/2013, itself is not maintainable, and the said case is pending at the stage of S/R and appearance only and the respondent herein is not pursuing the said case in right earnest.

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4.4. Under such circumstances, Mr. Sarma submits that the impugned order, so passed by the learned trial Court, dated 15.05.2025, directing to remove the tinsheet fencing and tin-roof structures and any other constructions raised over the Schedule-‘B’ land after the status quo order passed by that court, suffers from illegalities for being passed without considering the aforesaid facts and therefore, it is contended to allow this petition, by setting aside both the orders of the learned trial Court as well as of the appellate Court.

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5. Per contra, Mr. Dutta, learned Senior Counsel for the respondent has vehemently opposed the petition. Mr. Dutta has raised a question about maintainability of this petition and that the petitioner has been claiming his easementary right and the same is not adverse possession simpliciter, and that the submission, so advanced by Mr. Sarma, learned counsel for the petitioner, is a misplaced submission regarding maintainability of the plaint.

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5.1. Mr. Dutta also submits that the impugned order, so passed by the learned trial Court is not to be interfered with and that the earlier set of counsel for the petitioner had admitted before this Court that the tin-chali house was constructed while the injunction order was still operating. Mr. Dutta further submits that this Court, vide interim order dated 11.06.2025, had directed the parties to maintain status quo and said the petitioner had suppressed material facts, and as such, the present petition is not maintainable and the interim order is liable to be vacated and this petition may be dismissed.

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5.2. In support of this submission, Mr. Dutta has referred to the following decisions of Hon’ble Supreme Court:

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(i) United India Insurance Co. Ltd. vs. Rajendra Singh and Ors. , reported in (2000) 3 SCC 581 .

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(ii) Devendra Kumar vs. State of Uttaranchal and Ors. , reported in (2013) 9 SCC 363 .

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(iii) Tayabbhai M. Bagasarwalla and Anr. vs. Hind Rubber Industries Pvt. Ltd. and Ors. , reported in (1997) 3 SCC 443 .

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(iv) Municipal Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde etc. etc. , reported in 2024 SCC OnLine SC 3722 .

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6. Having heard the submissions of learned counsel for both the parties, I

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have carefully gone through the petition and the documents placed on record. Also perused the impugned order dated 15.05.2025, passed by the learned trial Court, in Misc. (J) Case No. 146/2013, arising out of Title Suit No. 137/2013, and also the order dated 26.05.2025, passed by the learned appellate Court, in Misc. Appeal No. 7/2025. And also I have gone through the decisions referred by Mr. Dutta, learned Senior Counsel for the respondent.

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7. It appears that while passing the impugned order, directing to remove the tin-sheet fencing and tin-roof structures and any other constructions raised over the Schedule-‘B’ land after the status quo order, which presently obstruct the ingress and egress of the plaintiff/respondent to his land described in Schedule-‘A’, the learned trial Court had primarily relied upon the Commission Report, and arrived at a finding that upon a comprehensive evaluation of the facts and materials on record that it is of the view that the construction raised over the Schedule-‘B’ path during the pendency of the suit, are in clear violation of the subsisting status quo order, which cannot be permitted to continue as they unlawfully curtailed the plaintiff’s long standing right of ingress and egress and defeats the object of judicial protection. It also appears that the learned trial Court had passed the status quo order on 26.03.2015, over the suit path with direction by restraining both the sides from making any structural changes or alienating the suit land by way of sale, mortgage, transfer, lease, pledge, or otherwise till disposal of the main suit.

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8. It also appears that vide judgment dated 16.05.2016, in Misc. Appeal No. 3/2015, the status quo order was set aside by the learned appellate Court holding that the plaintiff/respondent, did not possess a prima facie case, inasmuch as his claim was projected on adverse possession and not on a valid title. The appellate Court also observed that continuation of the injunction would

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unduly curtail the rights of the petitioner over the suit land, which justified interference with the order of the learned trial Court. And accordingly, the learned appellate Court had interfered with the same.

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9. Thereafter, the respondent herein preferred CRP No. 199/2016, before this Court, challenging the judgment passed by the learned appellate Court and this Court was pleased to stay operation of the judgment of the learned appellate Court, vide order dated 17.06.2016, and directed that status quo with respect to the suit path, as ordered earlier by the learned trial Court, shall be maintained during the pendency of the revision petition.

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10. Thereafter, some allegations of violation of the status quo order was made by the respondent herein contending that the petitioner had unlawfully erected a concrete wall and barricaded the Schedule-‘B’ path, thereby blocking ingress and egress, and thereafter, an application under Order 39 Rule 2A CPC was instituted before the learned trial Court alleging willful disobedience of the Court’s order. Thereafter, upon a detailed consideration of the materials, the learned trial Court had found that the petitioner had indeed violated the status quo order and passed specific directions for restoration of the Schedule-‘B’ path to its original condition as it stood at the time of issuance of the injunction order and the restoration order was directed to be carried out under the supervision of the Superintendent of Police, Darrang and the Circle Officer, Mangaldai Revenue Circle.

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11. The petitioner then approached the learned appellate Court by filing Misc. Appeal No. 7/2019, challenging the restoration direction passed by the learned trial Court, but the learned appellate Court, vide order dated 23.10.2019, had rejected the prayer for stay of the restoration order. Thereafter, the petitioner preferred another CRP(IO) No. 377/2019, and the said revision

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petition and CRP No. 199/2016, were heard by this Court and vide common judgment and order dated 22.03.2024, set aside the judgment dated 16.05.2016, passed by the learned appellate Court, thereby restoring the original status quo order passed by the learned trial Court on 26.03.2015, and also not interfered with the orders dated 01.10.2019, 04.10.2019 and 24.10.2019, passed by this Court directing restoration of the suit path.

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12. The learned trial Court then to ascertain whether the plaintiff’s/respondent’s ingress and egress through the Schedule-‘B’ path could be maintained without demolishing any of the structure raised by the petitioner herein, and had appointed the Circle Officer, Mangaldai Revenue Circle to conduct inspection and submit a report. The Commissioner then carried out the inspection and submitted a report indicating therein that the ingress and egress of the land of the plaintiff could not be maintained without demolition of certain structures raised over the Schedule-‘B’ path.

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13. Though the petitioner herein had filed objection before the learned trial Court, yet after considering the same, the learned trial Court, vide order dated 31.10.2024, held that the inspection was correctly conducted under Order 39 Rule 7 CPC and the objection, so raised by the petitioner, was frivolous and aimed at delaying the proceedings. Thereafter, the petitioner herein had preferred another revision petition, being CRP (IO) No. 452/2024, before this Court challenging the latest status quo order passed by the learned trial Court, and this Court, vide order dated 13.11.2024, held that the claim of the respondent herein pertains to Schedule-‘B’ path and the order dated 01.10.2024, so passed by the learned trial Court, was set aside.

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14. That a perusal of the Commission Report, dated 25.06.2024, submitted by the Circle Officer, indicates that the ingress and egress from the respondent’s

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land described in the schedule cannot be maintained unless certain tin fencing and tin-roof structure, erected within the dispute Schedule-‘B land, are removed and that the structure obstructing access have been constructed by the petitioner during the pendency of the suit proceedings.

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15. However, it is the categorical stand of the petitioner that the petitioner had constructed the tin-chali house while no status quo order was operating. The learned counsel for the petitioner had also made a categorical statement before this Court at the time of hearing of the CRP(IO) No. 377/2019, and the said revision petition and CRP No. 199/2016. It is worth noting here in this context that the status quo order was not operating from 16.05.2016, when the learned appellate Court had set aside the status quo order dated 26.03.2015, so passed by the learned trial Court, till 17.06.2016 when this Court had stayed the said order of the appellate court.

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16. Obviously, as to when the tin-chali house was constructed, is a pure question of fact that requires detail evaluation of materials placed before the courts by both the parties, which are matter of trial, cannot be gone into in this revision petition. But, no material is placed before this Court by the respondent herein to contradict the said submission of Mr. Sarma, the learned counsel for the petitioner and the then counsel for the petitioner made before this Court at the time of hearing in CRP(IO) No. 377/2019, and CRP No. 199/2016. And if the tin-chali house was constructed while no status quo order was operating, then this Court is in respectful disagreement with the submission of Mr. Dutta, the learned Senior Counsel for the respondent that the petitioner herein had violated the status quo order passed by the learned trial court.

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17. Admittedly, the respondent herein has no right, title and interest over the Schedule-‘B’ land. And also admittedly, one tin-chali house has been

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constructed over the Schedule-‘B’ land and in the said tin-chali house, wherein the petitioner herein is residing with her minor daughter.

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18. Further, it is the categorical submission of Mr. Sarma, learned counsel for the petitioner that the main title suit, so filed by the respondent herein, is pending at the stage of S.R. and W/S, and no steps have been taken by the respondent. It is also his categorical contention that if the impugned order is allowed to stand, then the petitioner and her minor daughter would be rendered homeless, and as such, the interim order, so passed by this Court, may be allowed to continue till disposal of the title suit pending before the learned trial Court.

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19. It is to be noted here that in the case of Chameli Singh vs. State Of U.P., reported in (1996) 2 SCC 549, Hon’ble Supreme Court has referred to its earlier decision in P. G. Gupta vs. State of Gujarat , reported in 1995 (S2) SCC 182, a three Judges Bench decision, considering the mandate of human right to shelter, held that it should be read into Article 19(1)(e) and Article 21 of the Constitution of India to guarantee right to residence and settlement. It has also been held that protection of life guaranteed by Article 21 encompasses within its ambit, the right to shelter to enjoy the meaningful right to life.

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20. On the other hand, the respondent has been claiming his right of way, which is an easementary right over the Schedule ‘B’ land. As per Commissioner’s Report, the petitioner has already been using an alternative thoroughfare. His right is yet to be established and Section 15 of the Easements Act, provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage

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without any interruption for over 20 years. Notably, right, title and interest of the petitioner over the suit land was already affirmed by two learned courts i.e. by the learned Munsiff No. 2, Darrang, Mangaldai, in Title Suit No. 38/1998 (old) and Title Suit No. 2/2007 (new), and the said judgment and decree was further affirmed by the learned Civil Judge, Darrang, Mangaldai, in Title Appeal No. 6/2008, vide judgment and decree dated 10.08.2012. And indisputably, the present suit is pending at the stage of S/R and W/S, in a very nascent stage.

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21. The Commission Report, available at page No. 102 of the petition, it appears that the respondent herein has been entering through the land of his neighbour, namely, Sri Anil Sutradhar. And also from the report furnished to the Circle Officer, Mangaldoi by the Lot Mondol, which is available at page No.106 of the petition, that there is no existence of road in the revenue record and map. This report was furnished on 28.05.2018, in compliance of the order passed by the learned trial Court in Misc (J) Case No. 06/131/C in T.S. No. 07/2013.

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22. Though a contention is being made by Mr. Dutta, learned Senior Counsel for the respondent that the petitioner has misrepresented the facts and is not entitled to any equitable relief, yet, the said submission left this Court unimpressed, since in the Title Suit No. 38/1998 (old) and 02/2007 (new), the right and title of the petitioner over the suit land has been declared by the learned trial Court and the same stood affirmed by the learned appellate Court in T.A. No. 06/2008.

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23. Under the given factual backdrop, if at this stage the tin-chali house is removed then the petitioner and her minor daughter would be rendered homeless. Thus, if we balance the right of the petitioner, which is judicially accepted as a fundamental right, with that of the easementary right of the respondent, then the balance tilted in favour of the petitioner. But, this aspect

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eschewed consideration of the learned trial Court at the time of passing the impugned order.

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24. Moreover, the learned trial Court, while passing the impugned order, has also failed to take note of the fact that the status quo order was not operating from 16.05.2016, on which the learned appellate Court had set aside the order dated 26.03.2015, till 17.06.2016, on which this Court had stayed the order of the learned appellate Court. And that being so, this Court is of the view that the impugned order dated 15.05.2025, fails to withstand the legal scrutiny. It is to be noted here that the impugned order has already been stayed by this Court, vide interim order dated 11.06.2025, for vacation of which, the respondent had filed an interlocutory application being I.A. (C) No.2054/2025.

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25. I have carefully gone through the decisions referred by Mr. Dutta, the learned Senior Counsel for the respondent. In the case of Rajendra Singh (supra), Hon’ble Supreme Court has held that the Court has inherent power to recall order secured by fraud or misrepresentation. In the case of Devendra Kumar (supra), it was held that it is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. It has also been held that “Fraud avoids all judicial acts, ecclesiastical or temporal.” In the case of Tayabbhai M. Bagasarwalla (supra), Hon’ble Supreme Court has dealt with willful and blatant breach of order of injunction passed by the City Civil Court. There is no quarrel about the proposition of law laid down in the said case. But, to ascertain whether the petitioner has played fraud or not and whether the petitioner has actually violated the order of status quo or not, detailed analysis of the evidence and materials on record is necessary and the same are not made available before this Court and besides,

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in exercising the jurisdiction under Article 227 of the Constitution of India, this Court is not entitled to go into the same, as held by Hon’ble Supreme Court in the case of Vivek V.Gawde (supra), that in exercising extraordinary power of superintendence under Articles 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not reassess or re-analyze the evidence and/or materials on record.

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26. In the result, this Court is of the considered opinion that the impugned orders, under the given facts and circumstances, appears to be illegal and arbitrary and as such, it warrants interference of this Court, and accordingly, the same stands set aside and quashed.

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27. In view of the order passed in this petition, the connected interlocutory application filed for vacation of the interim order dated 11.06.2025, stands closed.

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28. However, the learned trial Court is requested to make an endeavour to dispose of the title suit as soon as practicable, preferably within a period six months, from the date of receipt of certified copy of this order.

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29. In terms of above, this revision petition stands disposed of.

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JUDGE

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Rabin Dey v. Lavita Das

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