Khagen Saharia vs Apurba C Saharia

1


2026:GAU-AS:16446
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

FAO/49/2025


1. Khagen Saharia,
S/o-Late Sandhiram Saharia,
R/o-Mangaldai, Near Hotel Madhuban,
P.O. And P.S.-Mangaldai,
Dist. Darrang, Assam,
Pin-784125.

2. Mriganga Saharia,
S/o-Sri Khagen Saharia,
R/o-Mangaldai, Near Hotel Madhuban,
P.O. And P.S.-Mangaldai,
Dist. Darrang, Assam,
Pin-784125.

…..Appellants
-Versus-

Apurba C Saharia,
S/o Sri Khagen Saharia,
R/o-Mangaldai, Near Hotel Madhuban,
P.O. And P.S.-Mangaldai,
Dist. Darrang, Assam,
Pin-784125.
……Respondent

For Appellants Mr. B.D. Deka, Advocate.


For Respondent Mr. S. Sarma, Advocate.

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Date of Hearing 19.08.2026.
:
10.11.2026
Date of Judgment :

BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER


[1] Heard Mr. B.D. Deka, the learned counsel for the appellants.
Also heard Mr. S. Sarma, the learned counsel for the
respondent.
[2] This appeal under Order 43, Rule 1(r) read with Section 151
of the Code of Civil Procedure, 1908 has been filed by the
appellants impugning the order dated 23.09.2024 passed by
the Court of learned Civil Judge (Senior Division), Darrang, at
Mangaldai in Misc. (J) Case No. 30/2023, arising out of Title
Suit No. 36/2023, whereby the Trial Court granted temporary
injunction against the present petitioner in favour of the
respondent.
[3] The facts relevant for consideration of the instant appeal, in
brief, are that the present respondent is the son of appellant
No. 1 and brother of appellant No. 2, and he filed a title suit
bearing T.S. No. 36/2023 before the Court of learned Civil
Judge (Senior Division) Darrang, Mangaldai seeking a
declaration that the Gift Deed No. 223, Sl. No. 257 dated
22.02.2023 executed by appellant No. 1 in favour of appellant
No. 2, whereby the property mentioned in the schedule to the
plaint was gifted to the present appellant No. 2, was a void
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and inoperative deed, and also prayed for cancellation of the
said deed. Apart from the above reliefs, the relief of
restraining the present appellants (appellant No. 1) from
alienating the land mentioned in the schedule to the plaint has
also been prayed for.
[4] Admittedly, it is stated in the plaint that the present appellant
No. 1 is the absolute owner of the scheduled land (land
measuring 2 Katha 10 Lecha covered by Dag No. 2232 of
Patta No. 997 of Mangaldai Town, Sadar, Mouza Chapai under
Mangaldai Revenue Circle). The said land was inherited by the
present appellant No. 1 from his father Sandhiram Saharia.
[5] Along with the aforesaid title suit, the present respondent also
filed an application under Order 39, Rules 1 and 2 of the Code
of Civil Procedure, 1908, before the Trial Court, praying for
temporary injunction against the present appellants from
transferring the scheduled land to a third party and restraining
them from causing any disturbance in respect of the suit land
in any manner till the disposal of the suit. The said application
was registered as Misc. (J) Case No. 30/2023.
[6] However, by order dated 23.09.2024 passed in Misc. (J) Case
No. 30/2023, the Trial Court allowed the prayer of grant of
temporary injunction by the present respondent and
restrained the present appellants from selling or transferring
the suit land to third parties and also restrained them from
causing any disturbance on the peaceful enjoyment of the
present respondent in respect of the dental clinic situated
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upon the suit land during the pendency of Title Suit No.
36/2023.
[7] While granting the relief of temporary injunction, the Trial
Court held that the present respondent has a strong prima
facie case with regard to the issue raised by him, and that the
balance of convenience in the event of granting of temporary
injunction is also in his favour. The Trial Court also found that
in the event of refusal to grant the temporary injunction
during the pendency of the title suit, the present respondent
would suffer irreparable loss, and as such the temporary
injunction was granted by the Trial Court finding all the three
basic ingredients for grant of temporary injunction, namely
existence of a prima facie case, balance of convenience, and
irreparable loss in favour of the present respondent. The said
order of temporary injunction has been impugned in the
instant appeal.
[8] Mr. B.D. Deka, the learned counsel for the appellants, has
submitted that the Trial Court has erred in granting temporary
injunction against the present appellant by wrongly coming to
the finding regarding the existence of three golden principles
required to be considered before grant of temporary
injunction in this case. He submits that though the Trial Court
has held that there is a strong prima facie case in favour of
the present respondent in issuing the temporary injunction,
however, in fact, the respondent, as petitioner in the aforesaid
Misc. (J) Case, has miserably failed to make out any prima
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facie case at all in his favour. He submits that, admittedly, the
plaintiff as well as the defendants (the parties hereto) are
Hindu by faith and governed by the Dayabhaga School of Law
with regard to the law of succession, and it is also an
admitted fact that the suit land is owned absolutely by the
present appellant No. 1.
[9] He submits that the respondent, being the son of appellant
No. 1, was only having a mere chance to succeed to the said
land as per the law of succession in the event of the death of
appellant No. 1. However, till appellant No. 1 is alive, the
present respondent does not have any accrued right over the
suit property. As such, being the absolute owner of the suit
property, appellant No. 1 is well within his rights to dispose of
the same in any manner in which he desires to do so within
the ambit of law. He submits that since the present
respondent is not the owner of the scheduled property, hence
the question of obtaining any consent from him does not
arise.
[10] The learned counsel for the appellants submits that since the
present respondent, as plaintiff, has not been able to show
anything from which his right over suit property is claimed,
apart from the fact that he is the son of the appellant No. 1
and has a chance of succeeding the suit property in the event
the appellant No. 1 dies without alienating the same.
[11] He submits that the portion of the suit land over which the
respondent is running his dental clinic is also in his possession
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only with the permission of the appellant No. 1, and as such
the appellant No. 1 cannot be restrained from dealing with the
property over which he has absolute right. He submits that
there is a catena of decisions of the Apex Court wherein it has
held that the courts are not justified in protecting the
possession of a relative who was allowed to live in the
premises for some time as a relative.
[12] He submits that the injunction is a personal right under
Section 41(j) of the Specific Relief Act, 1963; the plaintiff must
have personal interest in the matter. The interest of right not
shown to be in existence cannot be protected by granting
injunction.
[13] The learned counsel for the appellants submits that the suit
property, of which the appellant No. 1 was the owner, has
been gifted to the appellant No. 2 by him by executing a
registered deed of gift No. 223 bearing Sl. No. 257 dated
22.02.2023, and same has also been accepted by the
appellant No. 2. As such, the transfer of the property
mentioned in the schedule to the plaint from appellant No. 1
to appellant No. 2 has been affected in terms of the provision
contained in Section 123 of the Transfer of Property Act,
1882.
[14] He submits that the present respondent has assailed the said
gift deed only on the ground that his consent was not
obtained by the appellant No. 1 before executing the said gift
deed. However, he submits that as the appellant No. 1 is the
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absolute owner of the suit land, the necessity of obtaining
consent does not arise.
[15] He further submits that since the gifted property is an
immovable property, necessity of handing over possession is
also not there under law, and what is required is only the
acceptance on the part of the appellant No. 2, which has been
done in this case. He, therefore, submits that the Trial Court
has erred in holding that there is a strong prima facie case in
favour of the present respondent for grant of temporary
injunction.
[16] He also submits that since the appellant No. 1 was the
absolute owner of the suit property, he cannot be injuncted
from dealing with the said property as per his own wishes in
accordance with law. And as such, the Trial Court was wrong
in granting temporary injunction against the appellant No. 1,
who was the erstwhile owner of the scheduled property, and
the appellant No. 2, who is the present owner of the
scheduled property after the gift deed was executed. He,
therefore, prays for allowing this appeal and setting aside the
impugned order of the Trial Court. In support of his
submissions, the learned counsel for the appellants has cited
following rulings:
a) Maria Margarida Sequeira Fernandes and Others v.
Erasmo Jack De Sequeira (Through LRs), reported
in (2012) 5 SCC 370.
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b) Premji Ratansey Shah and Others v. Union of India
and Others, reported in (1994) 5 SCC 547.
c) Prasanta Kumar Sahoo and Others v. Charulata
Sahu and Others, reported in (2023) 9 SCC 641.
d) Prakash Chandra Roy and Others v. Prabhat
Chandra Roy and Others, reported in 1991 SCC
OnLine Pat 55.
[17] On the other hand, Mr. S. Sarma, the learned counsel for the
respondent, submits that there is no infirmity in the order of
the Trial Court whereby temporary injunction has been
granted during the pendency of Title Suit No. 36/2023,
justifying any interference by this Court in this appeal with the
impugned order.
[18] He submits that Trial Court correctly found existence of strong
prima facie case in favour of the present respondent to grant
temporary injunction, and other two essential ingredients for
grant of temporary injunction, namely balance of convenience
and irreparable loss, were also found in favour of the present
respondent.
[19] The learned counsel for the respondent submits that there is
no doubt that the parties to this litigation are governed by
Dayabhaga School of Hindu Law, and as such the father of
the present respondent is the absolute owner of the suit
property. However, he submits that the suit property was
orally gifted by appellant No. 1 to the present respondent,
and, accordingly, he has established a dental clinic over the
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same and is possessing the same since the year 2014. As
such, he submits that the gift deed could not have been
executed in respect of the said property without informing and
without obtaining the consent of the respondent.
[20] He further submits that the property in question is the
ancestral property of the appellant No. 1 and same is not the
self-acquired property of the appellant No. 1. As such, without
obtaining the consent of the respondent, who is possessing
the dental clinic situated over the suit land since the year
2014, the gift deed could not have been executed.
[21] The learned counsel for the respondent further submits that
the suit, namely, the Title Suit No. 36 of 2023,has been filed
by the present respondent primarily challenging the validity of
the gift deed, and as such, if before Trial Court deciding the
validity of the gift deed, the suit property is alienated by the
appellants, the Title Suit may itself become infructuous. As
such, he submits that the Trial Court was right in granting
temporary injunction against alienation of the suit property
and against disturbance of the peaceful possession of the
present respondent over the same during the pendency of the
aforementioned Title Suit. As such, he submits that this
appeal lacks merit and same is liable to be dismissed with
costs.
[22] I have considered the submissions made by the learned
counsel for both sides and have gone through the materials
available on record. I have also gone through the rulings cited
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by learned counsel for both sides in support of their respective
submissions.
[23] On perusal of the materials available on record, it appears
that the respondent, who is the son of the appellant No. 1, as
well as appellants are Hindus and admittedly are governed by
Dayabhaga School of Law with regard to the law of
succession. It also appears that in the plaint filed by the
present respondent in the Title Suit No. 36/2023 before the
Trial Court, the present respondent has pleaded that the
property mentioned in the schedule to the plaint has been
inherited by appellant No. 1 from his father. As such, prima
facie, it appears that appellant No. 1 is the absolute owner of
the said property.
[24] Under the Dayabhaga School of the Hindu Law, property is
transmitted by succession and not by survivorship, which is
quite contrary to what is there in the Mitakshara School of
Law, where son acquires at his birth an equal interest with his
father in all ancestral properties. In Dayabhaga School, the
sons do not acquire any interest in the ancestral property on
their birth. Their right arises for the first time on the death of
their father, and until then it is only a mere chance of
succeeding the ancestral property.
[25] In the instant case, the father (appellant No. 1), who has
inherited the property mentioned in the schedule to the plaint
from his father, has the right over the suit property and he
holds the suit property on his own right, which is not based on
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any contingency, and he is entitled to dispose of the property
in the manner he deems fit; the respondent does not have
any say in the same. Had the appellant had died intestate
without disposing of the scheduled property, only in that
contingency the respondent would have accrued right in the
suit property, and as such, during the lifetime of the appellant
No. 1, the respondent does not have any right whatsoever
over the suit property. It also appears that the property
mentioned in the schedule to the plaint has been gifted by
appellant No. 1 to the appellant No. 2 by executing a
registered gift deed; as such, prima facie, there does not
appear to be any infirmity in the said transfer.
[26] The respondent, as plaintiff, has failed to show as to on what
basis he is claiming right over the ancestral property during
the lifetime of his father (appellant No. 1). Unless the
respondent is able to show any infringement of his subsisting
rights with regard to the suit property, there does not appear
to be any prima facie case for grant of any temporary
injunction against the appellants, who are the owners of the
suit property (the appellant No. 1 before the execution of the
gift deed and the appellant No. 2 after the execution of the
gift deed). Unless the plaintiff (present respondent) is able to
show any infringement of his subsisting rights with regard to
the scheduled property, injunction may not be granted only
for mere asking for such relief by him. As such he has failed
to establish the existence of a prima facie case with regard to
infringement of any of his right with regard to the scheduled
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property, under such circumstances the balance of
convenience cannot be in favor of a person who has no
accrued right over the scheduled property; rather, same
would be in favor of the person who are the owners of the
said property. Similarly, as the respondent has failed to show
any subsisting right over the scheduled property during the
lifetime of the appellant No. 1, the question of him suffering
an irreparable loss in the event of denial of temporary
injunction does not arise.
[27] Restraining the owner of the property who are governed by
Dayabhaga School of Law from dealing with the said property
in the manner as they desire as per law would amount to
converting the said property, which is an unobstructed
heritage (apratibandhadaya), into an obstructed heritage
(sapratibandhadaya), which is contrary to the law applicable
to the parties in this case.
[28] In view of the discussions made and reasons stated in the
foregoing paragraphs, this Court is of considered opinion that
the Trial Court erred in holding that there is a strong prima
facie case in favour of the present respondent in granting the
temporary injunction with regard to the suit property during
the pendency of the Title Suit No. 36/2023. Similarly, the Trial
Court also erred in holding the balance of convenience and
irreparable loss in favour of the respondent by granting the
temporary injunction against the appellants, who are the
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owner of the suit property, during the pendency of the Title
Suit No. 36/2023.
[29] This First Appeal Against Order is accordingly, allowed, and
the impugned order dated 23.09.2024 passed, by the Trial
Court, in Misc. (J) Case No. 30/2023 arising out of Title Suit
No. 36/2023 is hereby set aside.
[30] The parties are left to bear their own costs.
[31] Send a copy of this order to the Trial Court for information.


JUDGE
Comparing Assistant

Munmun
Boruah
Digitally signed by
Munmun Boruah
Date: 2026.11.10 16:28:24
+05'30'
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