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GAHC010051722025

THE GAUHATI HIGH COURT

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

Case No. : FAO/14/2025

AYESHA KHATUN AND ANR

D/O. KUSUMUDDIN SHEIKH, RESIDENT OF VILLAGE- GARIKHANA

SHILLONG, P.O.BARABAZAR, P/S. LOMDENGIRI, DISTRICT- EAST KHASHI

HILLS (MEGHALAYA), PIN- 793002.

2: SOIDUR RAHMAN

S/O LATE ASRAF ALI

RESIDENT OF GOALPARA

WARD NO. 7

PO BALADMARI

P/S. AND DIST. GOALPARA

ASSAM- 783121

3: DELOWARA KHANAM

D/O. MONNAF ALI

RESIDENT OF GOALPARA

WARD NO. 7

P/O. BALADMARI

P/S. AND DIST. GOALPARA

ASSAM-783121

VERSUS

ABU BAKKAR SIDDIQUE

AGED ABOUT-37, S/O LATE ABDUL KADER, RESIDENT OF VILLAGE-

PALLIRTAL, CHEDAMARI, PO- CHALANTAPARA, P/S- JOGIGHOPA,

DISTRICT- BONGAIGAON, PIN- 738338, ASSAM. Page No.# 1/10

GAHC010051722025

THE GAUHATI HIGH COURT

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

Case No. : FAO/14/2025

AYESHA KHATUN AND ANR

D/O. KUSUMUDDIN SHEIKH, RESIDENT OF VILLAGE- GARIKHANA

SHILLONG, P.O.BARABAZAR, P/S. LOMDENGIRI, DISTRICT- EAST KHASHI

HILLS (MEGHALAYA), PIN- 793002.

2: SOIDUR RAHMAN

S/O LATE ASRAF ALI

RESIDENT OF GOALPARA

WARD NO. 7

PO BALADMARI

P/S. AND DIST. GOALPARA

ASSAM- 783121

3: DELOWARA KHANAM

D/O. MONNAF ALI

RESIDENT OF GOALPARA

WARD NO. 7

P/O. BALADMARI

P/S. AND DIST. GOALPARA

ASSAM-783121

VERSUS

ABU BAKKAR SIDDIQUE

AGED ABOUT-37, S/O LATE ABDUL KADER, RESIDENT OF VILLAGE-

PALLIRTAL, CHEDAMARI, PO- CHALANTAPARA, P/S- JOGIGHOPA,

DISTRICT- BONGAIGAON, PIN- 738338, ASSAM.

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B E F O R E

HON’BLE MR. JUSTICE DEVASHIS BARUAH

Advocates for the appellant(s) : Mr. BD Deka

Advocates for the respondent(s) : Mr. AZ Ahmed

Date of hearing & judgment : 01.05.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. BD Deka, the learned counsel appearing on behalf of the

appellants. Mr. AZ Ahmed, the learned counsel appears on behalf of the

respondents.

2. This is an appeal filed under Order XLIII Rule 1(r) of the Code of Civil

Procedure, 1908 (for short, the Code), challenging the order dated 29.01.2025

passed by the learned Civil Judge (Senior Division) Bongaigaon in Misc.(J) Case

No.82/2024 arising out of Title Suit No.79/2024 by allowing the application

under Order XXXIX Rule 1 and 2 of the Code.

3. It is seen that vide the impugned order dated 29.11.2025, the Court of the

learned Civil Judge (Senior Division) Bongaigaon (hereinafter to be referred to

as the ‘learned Trial Court’) directing the appellants herein who are the

defendants, their men, agents etc. were directed not to dispossess the plaintiff

from the suit land till the disposal of the main suit and further directed both the

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sides to maintain status-quo in respect to the suit land.

4. A question arises in the instant proceedings as to whether this Court is

required to interfere with the said injunction order, which is a discretionary order

passed in exercise of the equitable jurisdiction of the learned Trial Court. The

law in that regard is well settled that an order of injunction passed by the Court

of the first instance ought not to be interfered with sans, such discretion suffers

from perversity, unreasonableness, irrationality and is contrary to the well

settled principles for grant of an injunction. In the backdrop of the above

parameters of the settled position of law, this Court would like to deal with the

facts which led to the filing of the instant appeal.

5. The respondent herein as plaintiff filed a suit being Title Suit No. 79/2024

against the appellants who were the Defendants. For the sake of convenience,

the parties herein are referred to in the same status as they were before the

learned Trial Court.

6. It is the case of the plaintiff in the suit that a plot of land ad measuring 3

bighas, which is more specifically described in Schedule A to the plaint is the

subject matter of the said suit. It is the further case of the plaintiff that the

defendant No.1 is the owner of the said suit land. It was also mentioned that

the defendant No.1, since the date of the purchase permitted the plaintiff to

remain in possession over the said suit land as a caretaker and the plaintiff,

accordingly, possessed the said suit land by plantation of vegetables, orchards

and sometimes by cultivating jute cultivation. In the year 2022, the defendant

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No.1 expressed her willingness to transfer the said Schedule suit land. Under

such circumstances, the plaintiff approached the defendant No.1 in the month

of October 2022, and it was agreed to that the suit land would be sold at a

consideration of Rs.1,26,00,000/- i.e. at the rate of Rs.42,00,000/- per bigha.

7. It is the further case of the plaintiff that on 10.10.2022, an amount of

Rs.13,00,000/- was paid to the defendant No.1 in presence of witnesses.

Subsequently, the plaintiff further went to the defendant No.1 and offered

another amount of Rs.13,00,000/- as the second installment and requested the

defendant No.1 to sign the application form for land sale permission and also to

provide the necessary required documents for the purpose of application of the

land sale document permission. The defendant No.1 replied that she would

need the money in eight/nine months. The plaintiff reposing faith on the

defendant No.1 returned home. Later on, in the month of September 2023, the

defendant Nos.2 and 3 had visited the suit land and forcefully asked the plaintiff

to vacate the suit land. On inquiry being made, the plaintiff came to learn that

the entire suit land was transferred to the defendant Nos.2 and 3 by the

defendant No.1 by the registered deed of sale dated 05.08.2023.

8. The plaintiff could obtain the certified copy of the said sale deed on

06.07.2024 and thereupon filed the said suit. It is the case of a plaintiff that the

plaintiff is still in possession of the suit land and the plaintiff was threatened by

the defendant No.2 to dispossess the plaintiff and it is under such

circumstances, the suit was filed seeking specific performance of the agreement

dated 10.10.2022 as well as for cancellation of the two sale deeds being deed

No.1441/2023 and sale deed No.1442/2023, both dated 05.08.2023 and for

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issuance of necessary precept. The plaintiff also sought for a permanent

injunction against the defendants, their men etc., not to disturb the peaceful

possession of the plaintiff in respect to the suit land.

9. The plaintiff also filed an injunction application which was registered and

numbered as Misc.(J) Case No.82/2024. This Court for the sake of brevity is not

repeating the contents of the said application. Taking into account that the

contents of the said application is pari materia to the contents of the plaint,

except the statements made to the effect as to how the plaintiff has a prima

facie case, the balance of convenience is in favour of the plaintiff and the

plaintiff would suffer irreparable loss, harm and injury.

10. It is further pertinent to mention that in the said injunction application the

plaintiff sought for a grant of temporary injunction thereby to restrain the

opposite parties not to enter into the suit land and not to disturb the peaceful

possession of the plaintiff for the ends of justice.

11. It is seen from the records that the appellants herein have filed their

written objection. In the said written objection, the appellant No.1 had

categorically denied entering into the agreement for sale on 10.10.2022 on the

ground that she was at Shillong on the date, on which, the said purported

agreement for sale dated 10.10.2022 was executed. It was denied that an

amount of Rs.13,00,000/- was received from the plaintiff by the Defendant

No.1. It was also stated that after taking the land sale permission both the sale

deeds bearing deed Nos.1441/2023 and 1442/2023 dated 05.08.2023 were

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executed by the Defendant No.1 in favour of the Defendant Nos.2 and 3 and

both the physical and symbolic possession were handed over to the defendants

Nos.2 and 3 being the rightful purchaser.

12. The learned Trial Court on the basis of the materials on record passed the

impugned order dated 29.01.2025, thereby restraining the defendants herein,

their men, agents, etc., from dispossessing the plaintiff from the suit land till the

disposal of the main suit.

13. Mr. BD Deka, the learned counsel appearing on behalf of the appellants

submits that the learned Trial Court without ascertaining as to who is in

possession of the suit property directed the appellants not to dispossess the

plaintiff, inasmuch as, as per him the appellants are in possession of the suit

land. He further submitted that the plaintiff has no right to claim any right over

the said suit land. Taking into account that the plaintiff even cannot claim rights

under Section 53A of the Transfer of Property Act, 1882 (for short, ‘the Act of

1882’) in view of the fact that the purported agreement for sale dated

01.10.2022 is not a registered document, the question of seeking injunction

does not arise.

14. The learned counsel appearing on behalf of the Appellants referring to the

purported agreement for sale dated 10.10.2022 submitted that the said

agreement for sale also do not state that possession was handed over. The

learned counsel for the appellant further submitted that the plaintiff himself had

stated that his possession was that of a care taker and as such, he had no

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independent right to remain in possession even assuming that the plaintiff was

in possession and as such, the learned trial court could not have granted the

injunction.

15. Per contra, Mr. AZ Ahmed, the learned counsel for the respondents

submitted that the learned Trial Court had applied all the three golden principles

while granting of the injunction. He submitted that if the petitioner is

dispossessed during the pendency of the suit proceedings, the petitioner would

suffer irreparable loss, harm and injury. He, therefore, submitted that this is not

a case, wherein this Court is required to interfere with the impugned order.

16. This Court has given an anxious consideration to the respective submissions

and has also taken into account the materials on record. From the impugned

order, there is nothing to show that the learned Trial Court had ascertained who

is actually in possession over the suit land. Under such circumstances, at the

time of granting of an injunction, the learned Trial Court at best could have

passed an order directing both the parties to maintain status quo as regards the

possession. However, the learned Trial Court could not have directed the

defendants (Appellant Nos.2 and 3) who claim to be already in possession not

to dispossess the plaintiff. It is relevant to observe that temporary injunction is

granted to maintain the status as on the institution of the suit and granting an

injunction being not a matter of charity the Courts are, therefore, required to

properly apply the three principles well established for granting an injunction.

Herein the instant case, without ascertaining who is in possession of the suit

property injunction was granted not to dispossess the Plaintiff which renders the

impugned order irrational and unreasonable.

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17. This Court further takes note of that for the purpose of grant of an

injunction to protect the possession of the person with whom the agreement of

sale had been entered into, there has to be possession handed over on the

basis of the said agreement for sale and then only rights would accrue in terms

with Section 53A, subject to the said agreement for sale being registered.

However, in the instant case, the purported agreement for sale dated

10.10.2022 is not a registered document.

18. Considering the above, the said agreement for sale dated 10.10.2022 can

at best be said to be a document which will enable the plaintiff to get a decree

for specific performance and nothing more. In that view of the matter, the

question of granting of an injunction in favour of the plaintiff did not arise in

respect to the possession.

19. On the basis of the above analysis and determination, this Court is of the

opinion that the impugned order dated 29.01.2025 passed by the learned Civil

Judge (Senior Division) Bongaigaon in Misc.(J) Case No.82/2024 arising out of

Title Suit No.79/2024 is unreasonable, irrational and also is contrary to the well

settled principles for grant of an injunction.

20. Accordingly, the impugned order dated 29.01.2025 passed by the learned

Civil Judge (Senior Division) Bongaigaon in Misc.(J) Case No.82/2024 arising out

of Title Suit No.79/2024 is set aside and quashed.

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21. Before parting with the record, it relevant to observe that this Court during

the course of hearing enquired with the learned counsel for the plaintiff as to

how the amount of Rs.13,00,000/- was purportedly paid to the Defendant No.1.

The learned counsel submitted that the said amount was paid in cash. In this

regard, this Court finds it relevant to take note of the observations and

directions of the Supreme Court in the case of RBANMS Educational

Institution Vs. B Gunashekar and Another, reported in 2025 SCC Online

SC 793, wherein the Supreme Court at paragraph No.18.1 issued certain

direction. The directions issued were:

“However, when the Bill was passed, the permissible limit was capped

under Rupees Two Lakhs, instead of the proposed Rupees Three Lakhs.

When a suit is filed claiming Rs. 75,00,000/-paid by cash, not only does is

create a suspicion on the transaction, but also displays, a violation of law.

Though the amendment has come into effect from 01.04.2017, we find

from the present litigation that the same has not brought the desired

change. When there is a law in place, the same has to be enforced. Most

times, such transactions go unnoticed or not brought to the knowledge of

the income tax authorities. It is settled position that ignorance in fact is

excusable but not the ignorance in law. Therefore, we deem it necessary to

issue the following directions:

(A) Whenever, a suit is filed with a claim that Rs. 2,00,000/-and above

is paid by cash towards any transaction, the courts must intimate the same

to the jurisdictional Income Tax Department to verify the transaction and

the violation of Section 269ST of the Income Tax Act, if any,

(B) Whenever, any such information is received either from the court or

otherwise, the Jurisdictional Income Tax authority shall take appropriate

steps by following the due process in law,

(C) Whenever, a sum of Rs. 2,00,000/- and above is claimed to be paid

by cash towards consideration for conveyance of any immovable property

in a document presented for registration, the jurisdictional Sub-Registrar

shall intimate the same to the jurisdictional Income Tax Authority who shall

follow the due process in law before taking any action,

(D) Whenever, it comes to the knowledge of any Income Tax Authority

Order downloaded on 04-08-2025 10:05:35 PMPage No.# 10/10

that a sum of Rs. 2,00,000/-or above has been paid by way of

consideration in any transaction relating to any immovable property from

any other source or during the course of search or assessment

proceedings, the failure of the registering authority shall be brought to the

knowledge of the Chief Secretary of the State/UT for initiating appropriate

disciplinary action against such officer who failed to intimate the

transactions.”

22. The learned Trial Court shall comply with the above directions of the

Supreme Court and more particularly, Clause (A) and (B) quoted hereinabove.

23. Accordingly, the appeal stands allowed.

JUDGE

Comparing Assistant