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2001 DIGILAW 103 (CAL)

Palan Mondal v. Manoranjan Mondal

2001-02-23

BASUDEVA PANIGRAHI

body2001
Judgment 1. This revisional application is directed against the judgment/order passed by the learned Additional District Judge, 3rd Court, Alipore in Mise Appeal No. 86 of 1989 affirming the order of the learned Munsiff, 6th Court, Alipore whereby the petitioners' prayer for temporary injunction was rejected. 2. The plaintiffs-petitioners after filing the Title Suit No. 51/98, inter alia, moved for ad interim injunction on an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for restraining the defendants-opposite parties from interfering with and/or disturbing them from peaceful possc'5sion and enjoyment of the suit properties. It was contended before the trial Court that one Satish Chandra Mondal, who was their predecessor-in-interest took a loan of Rs. 150/- from Keshab Chandra Mondal and, accordingly, a deed of Kobala and Ekrarnama were executed in respect of the plot measuring an area of .40k decimals appertaining to J.L. No.3, Mouza-Jothbhim, C.S. Khatian No. 224, C.S. Dag No. 31 on condition that on repayment of the said loan amount with interest the said Keshab Chandra Mondal would execute a deed of reconveyance in favour of Satish Chandra Mondal. The petitioners further averred in their pleadings that Satish Chandra Mandal during his life time paid all the entire loan amount with interest to Keshab Chandra Mondal, but, in return Keshab Chandra Mandal did not execute a deed of reconveyance in favour of the vendor Satish Chandra Mondal. Sometime, thereafter, Satish Chandra Mondal died and the present plaintiffs became his legal heirs and succeeded all his properties including the suit land. 3. The present plaintiffs alter the demise of Satish Chandra Mandal requested the defendants to execute and register a deed of reconveyance in terms of the undertaking given by Keshab Chandra Mondal. But, however, they avoided to execute such deed on one pretext or other. But, the petitioners, notwithstanding execution of such document claimed to have been in possession of the suit land. Therefore, they have claimed they are in possession adversely against the interest of the defendants. 4. The case of the respondents.defendan1s is that Keshab Chandra Mondal executed a deed of conveyance although then might be another document under the name and style of Ekrarnama since neither the plaintiffs nor their predecessor-in-interest having ever claimed such land by paying the money from the date of execution of the deed of conveyance absolutely title passed thereunder. 4. The case of the respondents.defendan1s is that Keshab Chandra Mondal executed a deed of conveyance although then might be another document under the name and style of Ekrarnama since neither the plaintiffs nor their predecessor-in-interest having ever claimed such land by paying the money from the date of execution of the deed of conveyance absolutely title passed thereunder. In course of time their names were recorded in the R.S. settlement and they have been paying rent to the State Government in evidence of their possession. 5. The learned trial Court had refused to grant any injunction. Therefore, being aggrieved by refusal of such injunction the plaintiffs filed appeal before the learned District Judge which was eventually transferred to the learned Additional District Judge, Alipore who was inclined to dismiss the appeal. Plaintiffs being unsuccessful in both the Courts below have filed this revisional application. 6. Mr. Utpal Bhattacharya, learned Advocate appearing for the petitioners has strongly urged that the petitioners' predecessor-in-interest Keshab Chandra Mondal had paid back the money to the predecessor in-interest of the defendants. In that event, merely, because the document was executed earlier no right would flow under such deed. It has been further contended that even assuming the petitioners' predecessor-in interest had transferred .401/2 decimals but how the defendants had acquired title in respect of the rest of the suit land, has neither been considered nor decided by both the Courts below. It has been further argued that there was a claim made by the petitioners that they have been in possession adversely against the defendants that was also no adverted to by the Courts below. When there was a claim for injunction, it was not justified for the Courts below to enter into the merits of the case and reject the plaintiffs' prayer. If such observations were to stand, it may have a serious repercussion in the main suit at the time of trial. 7. The trial Court has also failed to bestow its attention as regards the irreparable injury and balance of convenience. Therefore, in such eventuality since the order passed by both the Courts below does not pass to the legal test, it required to be set aside. 8. The learned Advocate appearing for the defendants-respondents has contended that the trial Court did not find any prima facie title in favour of the plaintiffs. Therefore, in such eventuality since the order passed by both the Courts below does not pass to the legal test, it required to be set aside. 8. The learned Advocate appearing for the defendants-respondents has contended that the trial Court did not find any prima facie title in favour of the plaintiffs. Therefore, it was no inclined to grant ad interim injunction. In appeal the defendants-respondents have also filed their Rejoinders by denying the plaintiffs' averment. They have claimed, inter alia, to be in possession of the suit land in their own right. Since both the Courts have already come to the conclusion about the defendants' possession this Court sitting in revisional jurisdiction should not interfere with the possession which was also accepted by the appellate Court. Since there was no prima facie title in favour of the petitioners and the Courts below have refused to grant ad interim injunction, this Court while exercising its revisional jurisdiction should also deny such prayer asked by the petitioners. 9. From the contentions advanced by the learned Advocates appearing for both the parties it has to be found out whether the plaintiffs had prima facie title over the suit land. Admittedly, there was a deed of conveyance executed by the predecessor-in-interest of the plaintiffs whereby they had parted .401/2 decimals in favour of the defendants' predecessor-in-interest. On the same day another Ekrarnama was executed. Had the plaintiffs sought to get the properties within three years from the date of execution of Ekrarnama, they could have done so. Admittedly, no suit was filed within the prescribed period of limitation. The petitioners have claimed that by mutual arrangement the possession was surrendered in their favour. It is difficult to accept such stand at the revisional stage. But, however, such fact can be gone into in course of trial of the suit. The trial Court may advert to the claim of the petitioners with regard to the acquisition of title by adverse possession. 10. It has to be next considered that apart from .401/2 decimals, the plaintiffs can have title over the balance of the suit land. The R.S. record-of-rights stand in the name of the defendants predecessor-in-interest. How they have acquired such title is required to be taken into consideration at the time of hearing. It is premature to consider about such aspect at this stage since the written statement has not been filed. 11. The R.S. record-of-rights stand in the name of the defendants predecessor-in-interest. How they have acquired such title is required to be taken into consideration at the time of hearing. It is premature to consider about such aspect at this stage since the written statement has not been filed. 11. Both the Courts having found possession in favour of the defendants, it is not necessary to go into that question at the revisional stage. While considering claim for ad interim injunction it is to be found as to which of the parties is in possession of the property on the date of the suit. Since both the Courts have found possession in favour of the defendants and, accordingly, refused the prayer of injunction asked by the petitioners, it is unnecessary to go into that question in this revisional application. 12. It is submitted from the Bar that since the injunction application is pending where the defendants-respondents are yet to file their written objection, direction be issued for disposal of the injunction application. 13. Let the trial Court dispose of the injunction application independently without being influenced by the observations made in this order. 14. With the above findings, the revisional application is dismissed but without any order as to costs. Urgent xerox certified copy of the order, if applied for, same be supplied to the parties within two weeks from the date of putting requisition for the same.