Judgment & Order (Cav):

1. Heard Mr. P. Khataniar, learned counsel representing the appellants as well as Mr. R.K. Bhuyan, learned counsel appearing for the respondents.

2. This is an appeal under Order 43 Rule 1(r) and under Section 151 of the Code of Civil Procedure challenging the order dated 20.09.2024 passed by the learned Civil Judge (Sr. Divn.) No.1, Kamrup (Metro) in Misc.(J) Case No.449/2024 arising out of Title Suit No.253/2024.

3. The case of the appellants, in brief, is like this– the appellants Smti. Geeti Bora and Kaushik Bora are the wife and son of late Deba Kumar Bora, who along with the respondent Nava Kumar Bora are the sons of late Keshab Ram Bora.

4. Late Keshab Ram Bora was the owner of a plot of land measuring about 17.39 Are covered by Dag No.1761 of K.P. Patta No.1128 within Ulubari Mouza and situated by the side of the G.S. Road, Guwahati. After his death on 12.10.1997, Keshab Ram Bora left behind late Bhanumati Bora, late Kartik Ram Bora, Nava Kumar Bora, late Deba Kumar Bora, Smti. Krishna Choudhury and Smti. Uma Bora. All of them inherited the aforesaid property. Their names were mutated in the revenue records. After the death of Kartik Ram Bora, the name of his wife Smti. Purobi Bora was mutated in the land records.

5. During his lifetime, late Keshab Ram Bora was running a petrol pump, apart from other businesses upon the said land. After the death of Keshab Ram Bora, his youngest son late Deba Kumar Bora took over the said business. Late Deba Kumar Bora was also running some other businesses over some portions of the said land. He continued to pay the land revenue and other taxes. Late Deba Kumar Bora was running his own businesses over an area of about 5111.52 sq.ft (Schedule-A land). On 05.08.2018, Deba Kumar Bora expired leaving behind the appellants as his only legal heirs.

6. After the death of Deba Kumar Bora, his wife and son mutated their names in the land records.

7. After the death of Deba Kumar Bora, his son Kaushik Bora (one of the appellants) started a Show Room of Suzuki Motorcycle Pvt. Ltd. under the name and style of “Hrishaan Motors”. This business was being run from a building situated over the aforementioned land where the petrol pump stood.

8. Apart from the aforesaid business, Kaushik Bora was also running a car washing centre by the name of M/S. Bora Servicing Station Car washing point. This business was also running from the same building from where the business of Hrishaan Motors was running.

9. It is an admitted fact that the appellants and the respondents are joint pattadars in respect of the land left behind by late keshab Ram Bora.

10. In the meantime, Sri Kaushik Bora had received an occupation certificate from Gauhati Municipal Corporation in respect of the RCC G+3 Floor building standing over the land originally owned by late Keshab Ram Bora.

11. On 23.03.2023, some unknown persons were measuring the entire land. It was discovered that the measurement was done at the behest of Sanjiv Bora, the son of Purobi Bora who is the widow of late Kartik Bora. The appellants claim that the land was measured with an intention to sell the same. The respondents allegedly threatened that they will compel Shri Kaushik Bora to close down his business.

12. With the aforesaid story, the appellants filed the suit praying for a declaration that they are in possession of the Schedule-A land. The appellants also prayed for a decree declaring that they have acquired right, title and interest over Schedule-A land by way of right of prescription.

13. The appellants also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure praying for an ad interim injunction restraining the respondents from disturbing their possession over Schedule-A land and also to restrain the respondents from erecting any permanent structure over the remaining part of the land (Schedule-B).

14. The learned trial court granted the prayer for ad interim injunction as prayed by the appellants.

15. The appellants did not disclose the reason as to whether the aforementioned petrol pump is still running or not. Be that as it may, there are two gates for entering into the property. One gate is for ingress and the other one is for egress. It is alleged that both the gates were closed by the respondents causing disturbance in movement to the business of Hrishaan Motors. The appellants moved the court of the learned Civil Judge No.1 for seeking relief.

16. The learned court below directed the opposite parties/respondents to remove the obstruction only from the south-eastern Iron Gate so that the appellants can have a smooth passage to their business establishments.

17. Being aggrieved by the aforesaid order of partial allowance of the prayer of the appellants, this appeal has been filed.

18. I have considered the submissions made by the learned counsel of both sides.

19. It is an admitted fact that the respondents have already removed the obstructions from the southeastern Iron Gate. It is pursuant to compliance of the order of the trial court.

20. At the time of considering the prayer for ad interim injunction, the court is not supposed to have a mini trial of the case. For grant of ad interim injunction, three elements are necessary, which are– prima facie case, balance of convenience and irreparable loss. The learned trial court has deliberated upon all the three elements and passed the impugned order. The appellants have not claimed that they would suffer irreparable loss if the other gate is not opened. The learned trial court has allowed the prayer for ad interim injunction by removing obstruction from the south-eastern gate. The suit is still pending for disposal. At this stage, this Court is of the opinion that interfering with the order of the trial court would amount to interfering with the merit of the case and this is not allowed by law. The trial court should be given adequate opportunity to decide the case. I find that no interference of this Court is required in this case. The present appeal is devoid of merit. Therefore, the appeal is dismissed.