BABU SEIKH v. SETBALA MONDAL — 1992 DIGILAW 177 (CAL)

P. K. MUKHERJEE, J. ( 1 ) THIS revisional a application is directed against an appellate judgment and order dated 13th June, 1991, passed by the Additional District Judge, 4th Court, Murshidabad, being Misc. Appeal. No. 5 of 1991 (Goutam Chandra Mondal v. Babu Sk. ). In the said order the Court of Appeal below had allowed the appeal preferred by the plaintiffs-appellants-opposite parties herein and granted injunction restraining the defendants opposite parties by an order of temporary injunction from disturbing the peaceful possession of the plaintiffs on the suit property. ( 2 ) THE facts stated in this revisional application are as follows : a suit was instituted by the plaintiffs-opposite parties herein, before the learned Munsif, Lalbagh being Title Suit No. 113 of 1990 and in connection with the said suit a prayer for interim injunction was made under Order 39 rule 1 and 2 of the Code of Civil Procedure. The learned Munsif, Lalbagh had taken up the injunction matter and had taken into consideration as noted the following facts. ( 3 ) FROM the facts and documents he came to the conclusion that Panchu Seikh has settled the "falkar" to the defendant and other person, namely, Arman Seikh and Jakir Seikh. Thereafter, the defendant transferred the said "falkar" right with a writing consent of Panchu Seikh to Ashok Kumar Mondal and four others. The signature of Panchu Seikh clearly appearing on the said 'falkar' receipt granted in favour of Ashok Kumar Mondal and four others on 12th April, 1990. The plaintiffs had claimed the suit property on the strength of deed of exchange dated 26th April, 1989, executed by Panchu Seikh and his wife in one side and the plaintiffs on the other side. ( 4 ) THE learned Munsif did not want to express any view regarding the deed of exchange dated 26th April, 1989, and observed that it was true at this stage, the deed of exchange dated 26th April, 1989 had already lost its weight after filing affidavit of the plaintiffs' vendor, namely, Panchu Seikh. Moreover, it appeared from the recital of the said deed that the parties in the said deed get their respective lands exchanged by the said documents due to inconvenience of the cultivation. Moreover, it appeared from the recital of the said deed that the parties in the said deed get their respective lands exchanged by the said documents due to inconvenience of the cultivation. More so, it further appeared that the classification of the suit plot mentioned in the said deed as 'aush' and no reference had been given as to the existence of trees standing thereon. ( 5 ) ULTIMATELY, on the basis of placing reliance on the decision reported in AIR 1929 Calcutta at page 293, ILR 46 Calcutta at page 1001, 23 Calcutta Weekly Notes at page 677 and 29 CLJ at page 584, the learned Munsif decided not to disturb the person who is in possession of the properties at this stage. ( 6 ) AGAINST the said decision an appeal had preferred by the plaintiffs and the lower appellate Court, inter alia, came to the conclusion which is stated hereinbelow: (A) On carefully going through the order impugned it appeared that the learned Munsif had based his order mainly relying on the statement made by Panchu Seikh in his affidavit sworn before the learned trial Court in connection with injunction proceeding. (B) In the affidavit dated 22nd November, 1990, which was filed before the learned trial Court on 27th November, 1990, the said Panchu Seikh had tried to assert that the deed of exchange executed in favour of the plaintiffs was a fraudulent deed which was created by Gopal Mondal, the father of the plaintiff No. 2 and the husband of the plaintiff No. 1 taking the advantage of intimate relationship between him and the deponent. He had gone so far as to call such deed as collusive and fraudulent. (C) At the very outset the Court of appeal below observed that though Panchu Seikh filed a lengthy affidavit supporting the case of the defendant in toto, but nothing had been alleged how the deed of exchange was fraudulent and in what way fraud was practised by him upon the said Gopal Mondal, the husband of the plaintiff No. 1 and the father of the plaintiff No. 2. ( 7 ) FROM the aforesaid materials, the Court of Appeal below came to the definite finding of facts that the allegations made by Panchu Seikh to this effect are totally unfounded. ( 7 ) FROM the aforesaid materials, the Court of Appeal below came to the definite finding of facts that the allegations made by Panchu Seikh to this effect are totally unfounded. ( 8 ) THE Court of Appeal below further came to the conclusion that the recitals have clearly incorporated the number of the deed of exchange and from these it would be clear that the document through which they have claimed right, title and interest over the property was executed by the plaintiffs. So, it can be said without hesitation that the learned Munsif has failed to take notice of these important materials which were on record. ( 9 ) THE Court of Appeal has further taken into consideration that the learned Munsif has also relied on the circumstances in coming to the conclusion that the plaintiffs have got no possession over the suit property. In the result the Court of Appeal below came to the definite finding that the learned Munsif failed to appreciate the matter in issue in its proper perspective. ( 10 ) THEREAFTER, the Court of Appeal below considered the case of the defendant, as disclosed in the written objection, Panchu Seikh executed a deed in favour of Arman Seikh granting him the right to pluck fruits from the suit property for the period from 1398 B. S. to 1405 B. S. It was further alleged that the said Arman Seikh sold away such right to the defendant on 5th July, 1987 at a price of Rs. 20,000/ -. Now, the defendant has also filed the unregistered deeds in connection with these alleged lease. In the first deed, Panchu Seikh granted the right to pluck fruits to the defendant at a price of Rs. 2100/ -. The period for which such right was created was from 1st of Shravan, 1396 B. S. to 31st of Ashar, 1397 B. S. ( 11 ) THE opinion of the Court of Appeal below is that since the period has already expired, the appeal Court was reluctant to consider this deed. There is also a deed stated to be a receipt showing that Ashok Kumar Monda1 and others paid Rs. 50,000/- to the defendant for getting the aforesaid right for the aforesaid period. There is also a deed stated to be a receipt showing that Ashok Kumar Monda1 and others paid Rs. 50,000/- to the defendant for getting the aforesaid right for the aforesaid period. According to the appeal Court, under the provision of section 107 of the Transfer of Property Act, a lease of immovable property from year to year or for any terms exceeding one year can be made only by a registered instrument. The expression immovable property not having been I defined ill the Transfer of Property Act, but it has been provided that 'immovable Property' does not include the standing timber etc. But it was well settled that trees which bear fruits or other forest produce are not standing timber but are considered as 'immovable property'. ( 12 ) THE appeal Court has also taken into consideration to the provision of section 3 (25) of the General Clause Act which defines the 'immovable property' includes benefits to arise out of land. So, according to the appeal Court, it can be said that the right to pluck fruits from the trees, which are on the suit land, being benefit arising out of land is 'immovable property' and therefore, if any lease is created by a deed for a period of one year or more, that should be registered under the provision of section 107 of the Transfer of Property Act. ( 13 ) LASTLY, the appeal Court, inter alia, came to the conclusion that it was significant to note that no such argument has been made before the lower court and he found that a futile attempt has been made on the part of the defendant-respondent to assert such claim at this stage before the appellate Court. The Court of Appeal has taken into consideration to the affidavit sworn by Arman Seikh in connection with the injunction proceeding according to the appeal Court, nowhere the said Arman Seikh has asserted in the affidavit that he has not received Rs. 20,. 000/- as a consideration for transfer of 'falkar' in favour of the defendant. He has also not asserted that he delivered possession of such property to the defendant. Ultimately, the Court of Appeal also came to the conclusion that the plaintiffs prima facie, case for right, title and interest over the suit property be decided to grant injunction as referred to hereinabove which has been challenged in the instant petition. He has also not asserted that he delivered possession of such property to the defendant. Ultimately, the Court of Appeal also came to the conclusion that the plaintiffs prima facie, case for right, title and interest over the suit property be decided to grant injunction as referred to hereinabove which has been challenged in the instant petition. ( 14 ) MR. S. Ganguly, learned Advocate appearing on behalf of the petitioner placed the relevant provision to section 49 of the Indian Registration Act, 1908, which is set out hereinbelow :-"effect of non-registration of documents required to be registered-no document required by section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purpose of section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument". ( 15 ) MR. Ganguly next submitted that the lower court not having granted injunction on the basis of the affidavit affirmed by Panchu Seikh, it was not open that the Court of Appeal to grant injunction without arriving at the necessary conclusion that the plaintiffs were in actual possession and therefore, the lower appellate court has erred in the matter for not granting injunction. ( 16 ) MR Bidhan Chandra Ghosal, learned Advocate, appearing on behalf of the plaintiffs-opposite parties submitted that this Court ordinarily in exercising power under section 115 of the Code of Civil Procedure is not entitled to substitute its views when the Court of Appeal below in an injunction matter had decided to grant injunction as there was a prima facie case in favour of the plaintiffs. ( 17 ) MR. Ghosal next submitted that on the basis of the observation of the Supreme Court in the case of Chaube Jagdish Prasad and Anr. ( 17 ) MR. Ghosal next submitted that on the basis of the observation of the Supreme Court in the case of Chaube Jagdish Prasad and Anr. v. Ganga Prasad Chaturbedi, reported in AIR 1959 Supreme Court 492, wherein the Supreme Court has laid down the law relating to invoking jurisdiction in revision under section 115 of the Code of Civil Procedure. ( 18 ) IN the said celebrated case it was observed by the Supreme Court is as follows:-section 115, Civil Procedure Code, empowers the High where no appeal lies, to satisfy itself on three matters : section 115, Civil Procedure Code, empowers the High Court, in cases where no appeal lies, to satisfy itself on, three matters : (A) that the order made by the subordinate court is within its jurisdiction ; (b) that the case is one in which the court ought to exercise its jurisdiction ; (c) that in exercising the jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of Procedure in the course of trial which is material in that it may have affected the ultimate decision. Therefore, if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of powers of revision by the High Court is made out. If a subordinate Court has jurisdiction to make the order it made and has not acted in breach of any provision of. law or committed any error of procedure which is material and may have affected the ultimate decision then the High Court has no power to interfere. ( 19 ) IN support of his submission he has also referred to other Single Bench decision of this Court in the case of Kalyan Mukherjee v. M/s. Rahul Syndicate, reported in AIR 1992 Calcutta at page 1, wherein the point as to the scope of interference in revision arising out of matter granting temporary injunction by the Subordinate court. ( 20 ) HE has also placed reliance on a single Bench decision of the Calcutta. High Court in the case of Ajay Kumar Sinha v. Mrs. Anne Maria Barrate and Ors. ( 20 ) HE has also placed reliance on a single Bench decision of the Calcutta. High Court in the case of Ajay Kumar Sinha v. Mrs. Anne Maria Barrate and Ors. , reported in 1989 CLJ at page 556, wherein K. M. Yusuf, J. observed as follows :"the High Court must not sit down to scan the evidence and came to its own conclusion in revision. If finding of fact is erroneous, or even grossly erroneous, the trial court cannot be regarded to have acted illegally or with material irregularity within the ambit of section 115 of the Code of Civil Procedure for erroneous appreciation of materials on record and the resultant erroneous conclusions. While exercising the revisional jurisdiction it is not competent for the High Court to correct error of facts and law, however, gross or manifest, unless those errors have relation to jurisdiction of the Court below to try the dispute itself". ( 21 ) IN reply Mr. Ganguly, learned Advocate, appearing for the petitioner submits that in case this court is not inclined to interfere with the revisional application, then affected case has been made out for sending the matter on remand back to the Court of appeal below for reassessment and reappraisal of the evidence. ( 22 ) IN the aforesaid circumstances, this Court has to decide as to whether, the plaintiffs-opposite parties herein have been able to make out a prima facie case for grant of injunction in their favour on the basis of the registered documents executed on 24th April, 1989 and 26th April, 1989, which can be adjudicated at the final hearing of the suit. ( 23 ) IN this context, this Court is of the view that since the Court of Appeal below has arrived at the relevant conclusion that the plaintiffs have got prima facie right, title and interest over the suit property and the plaintiffs have got suit property to go to the trial, it was incumbent upon the learned Munsif to grant injunction pending trial of the main suit. ( 24 ) IN the facts of the present case, in my opinion, the Court of Appeal below has not only considered the evidence adduced by the parties including the affidavit but the Court of appeal below has since given detail reasons in support of such finding for granting injunction in favour of the plaintiffs, it would not be fit and proper for this Court to interfere with the prima facie right, title and interest on the basis of the registered deed which should be decided at the final adjudication of the suit. ( 25 ) IN the result, in my view, the revisional application is entitled to fail and the learned Munsif is directed to dispose of the matter at an early date. ( 26 ) THE revisional application is, therefore, dismissed. Interim orders, if any, are vacated. There will be no order as to costs. Application rejected.