Prabhat Ch. Pradhani and Others v. Sachindra Deb Nath and Others, Shri Nagendra Ch. Pradhani and Others.
1986-02-28
K.N.SAIKIA
body1986
DigiLaw.ai
This plaintiffs' second appeal is from the judgment decree of the Assistant District Judge, Goalpara at Dhubri sett in aside the judgment and decree of the Munsiff who decreed the suit. The plaintiffs instituted Title Suit No 173/75 for perpetual injunction restraining the defendants 1, 2 and 3 from entering the suit land measuring 2 B O K 7 Ls. and for striking off the names of the defendants from Khatian No. 42 in Dag No. 78 of village Dakhin Tukrerchhara Part III under Golokgunj Circle pertaining to the suit land claiming that they inherited the suit land from their father Meduram Pradbani son of Tola-ram Pradbani. The suit was resisted by the defendants stating to it by virtue of mutation they were co-khatiandars in respect of the said Khatian No. 42 and Dag No. 78 over Bigha of land thereof and had been in peaceful possession of the entire suit land, the excess 7 lechas having also been purchased by them from one Late Hagura Roy Pradhani. The trial court framed 3 issues, namely, whether the plaintiffs had right, title interest and possession over the suit land; whether the defendants ever hide to dispossess the plaintiffs from the suit land as alleged in the plaint; and what reliefs the plaintiffs were entitled to. At the trial the plaintiffs examined 4 witnesses while the defendants examined 2 witnesses. On the basis of the evidence on record the trial court decreed the suit in so far as the perpetual injunction was concerned but did not order correction of the mutation in the revenue records. The plaintiffs did not appeal, but the defendants appealed to the Assistant District Judge who by the impugned judgment dated 31.5.78 allowed the appeal setting aside the judgment and decree of the Munsiff and dismissed the suit. Hence this plaintiffs' second appeal. The only surviving issue, therefore, is that of relief of perpetual injunction. 2. Mr.
The plaintiffs did not appeal, but the defendants appealed to the Assistant District Judge who by the impugned judgment dated 31.5.78 allowed the appeal setting aside the judgment and decree of the Munsiff and dismissed the suit. Hence this plaintiffs' second appeal. The only surviving issue, therefore, is that of relief of perpetual injunction. 2. Mr. T. N. Phukan, the learned counsel for the plaintiffs appellants submits, inter alia, that Exhibits - A, B and C produced by the defendants having been found not to have per tainted to the suit land, there was no basis for the defendants' obtaining any mutation; and that the mutation itself did not prove defendants' title to the suit land, and the plaintiffs' title over the suit land having not been denied by the defendants the learned lower appellate court erred in law in dismissing the suit only on the ground of the mutation. 3. Mr. A. K. Das, the learned counsel for the respondents answers submitting that the defendants' mutation having been there in the records of right they were the joint owners of the suit land, and at any rate they having been in possession of the suit land, the suit for perpetual injunction was rightly dismissed. 4. Mr. Phukan does not deny that the mutation on the Khatian No. 42, Dag No. 78 was there in favour of the defendants at the relevant time, but submits that it was a field mutation and the plaintiffs have already applied for its cancellation and may even have obtained the cancellation by ibis time. The only question, therefore is, whether the learned lower appellate court was correct in dismissing the plaintiff's suit for perpetual injunction in view of the aforesaid mutation in favour of the defendants ? 5. Admittedly the mutation order was passed by the SDC on 5 12-70 in respect of same Khatian No. 42 and Dag No. 78. Though the mutation itself did not confer title yet it was indicative of some rights vested in the defendants. Rule 211 of the Assam Land Records Manual at the relevant time provided for field mutation in undisputed cases.
Though the mutation itself did not confer title yet it was indicative of some rights vested in the defendants. Rule 211 of the Assam Land Records Manual at the relevant time provided for field mutation in undisputed cases. In the Assam Land and Revenue Regulation Section 53 A (1) provided for mutation on the basis of information otherwise than through an application, and under sub-section (2) of that section one could appeal against such order within a period of 3 (three) years of the date of such order of mutation. There was no such appeal and the mutation continued for more than 3 (three) years. Admittedly, the suit land was an agricultural land. The defendants claimed to have been in possession thereof and therein on that basis. If the defendants.' name were mutated along with those of the plaintiffs in the same khatian they world be co-sharers and as such each of them should have gigot to each parcel of the suit land. Under such circumstances should the court have issued perpetual injunction ? 6. An injunction is a judicial process whereby a party is ordered to refrain from doing or to do particular act or thing. In the former case it is called restrictive injunction and the latter a mandatory injunction. It is a remedy of an equitable nature and the injunction does not run with the land. A perpetual injunction is based on a final determination of the rights of the parties and is intended permanently to prevent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement. Section 30 (1) of the Specific Relief Act, 1963 deals with perpetual injunction. Under that sub-section, subject to the other provisions contained in or referred to in Chapter VIII of that Act, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication Under sub section (3) thereof when the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, the court may grant a perpetual injunction where the invasion is such that compensation in money would not afford adequate relief; and where the injunction is necessary to prevent multiplicity of judicial proceedings.
If in fact the plaintiff had exclusive right, title and interest over the suit land and the defendants had no semblance of any right thereto and yet threatened to infringe the plaintiff's right of possession they could pray for injunction to restrain the defendants from invading their right to possession; and to prevent multiplicity of judicial proceeding the plaintiffs could pray for perpetual injunction. Section 41 of the same Act prescribes the circumstances when injunction is to be refused. Under clause (h) thereof injunction will be refused when equally efficacious relief can certainly be obtained by any caber usual mode of proceeding except in case of breach of trust. An injunction cannot be granted where the plaintiff's conduct is such as to disentitle him to that relief. The plaintiffs could have got the mutation entry in favour of the defendants cancelled according to law. 7. The suit of the plaintiffs may be termed as 'quia timet' action. A 'quia timet' action is one by which a person may obtain an injunction to prevent or restrain some threatened act being done which, if done, would cause him substantial damage, and for which money would be no adequate or sufficient remedy. Threatened invasion of legal right when established and when it is further established that invasion may be repeated, a perpetual injunction may be justified. However, a perpetual injunction has to be based on a final determination of the rights of the parties; and it is intended permanently to prevent infringtnent of those rights and obviate the necessity of bringing action after action in respect of every such future infringement. When a plaintiff has established that he has a right which has been infringed and that further infringement is threatened to a material extent he is entitled to an injunction to restrain such threatened infringement upon the ordinary principles upon which the courts generally act in granting injunction. Where the plaintiff's right is not disputed, an injunction may be granted to restrain the commission of an apprehended or threatened act, on the ground that the act, if done, will affect the plaintiff's legal right, if he can show a strong case of likelihood that the apprehended mischief will in fact arise; but one can obtain 'quia timet' order if he aver that what is going on is calculated to infringe his right.
If, however, the defendant claims and insists upon his right or gives definite motive of his intention or threatens or intends to commit an act, which, if committed would, in the opinion of the court, violate the plaintiff's right, an injunction may be granted. 8. In the instant case so long the mutation in favour of the defendants continues on record, it cannot be said that any exercise of the defendants' right pursuant to that mutation would, ipso facto, infringe the right of the plaintiffs. In the instant suit the plaintiffs, for reasons known to them, have not prayed for declaration of their title to the land but only prayed for perpetual injunction and correction of the records of right. It is not denied that under Rule 211 of the Assitn Land Records Manual, which was in force at the relevant time, there could be field mutation in undisputed cases when the pattadar was present and he agreed to the transfer, the fact could be noted in the remark column of the chitha, which was known as field mutation. The said rule was, however, amended vide No. RLR. 64/71/20 dt. 8.12.72. The instant mutation was done on 5.12.70, that is when this rule was in force. That being the position so long be mutation entry continued it could not be said that the right, interest and title of the plaintiffs to the suit land was absolute and exclusive vis a vis the defendants. That being the position, no perpetual injunction could be granted to restrain the defendants from exercising whatever right they earned by the said mutation. The impugned judgment and decree cannot, therefore, be found fault with. 9. Mr. Phukan submits that in case the plaintiffs have by now got the aforesaid mutation cancelled in accordance with law, there should be no bar to the plaintiffs' enjoyment of their rights, title and interest over the suit land. The instant suit being only for perpetual injunction and correction of the records of right, if in fact the plaintiffs subsequently have got the mutation entry set aside or cancelled, there should be no obstacle to their enjoyment of their right, title and interest over the suit land. There should equally be no bar to the plaintiffs' seeking declaration of their rights, title and interest over the suit land.
There should equally be no bar to the plaintiffs' seeking declaration of their rights, title and interest over the suit land. This second appeal is accordingly found to be devoid of merit and hence dismissed. Parties shall bear their Owe Costs.