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2002 DIGILAW 736 (CAL)

Sambhu Chandra Sarkar v. State of West Bengal

2002-12-20

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This order arises out of an application for vacating or modifying the order dated 18th August, 1998 passed by a Single Bench of this Court (B.Bhattacharyya's J.) directing both the parties to maintain status quo as regards the nature, character and possession of the suit premises till disposal of the revisional application in question (C.O. 2014/98). The said revisional application was filed by the applicant Sambhu Ch. Sarkar and others against the State of West Bengal and others (hereinafter referred to as the O.Ps.) and the same was directed against the order No.3 dt. 17.6.1998 passed - by the ld. District Judge, Nadia in Misc. Appeal No. 34/98 affirming the order No. 14 dt. 16.4.1998 passed by the ld. Asstt. District Judge, Ranaghat in T.S. No. 121 of 1997. That Title Suit was filed by these applicants as plaintiffs by Sambhu Ch. Sarkar and others before the said Court of Asstt. District Judge, Ranaghat praying for a decree for declaration of title and permanent injunction against the O.Ps. as defendants in respect of their 16 annas' title over the suit property as described in the schedule of the plaint. The suit pertaining to R.S. Plot No. 364 under R.S. Khatian No. 379 of Mouza-Kadampur, P.S. Santipur under District-Nadia having a total area •90 decimals of land originally belonged to one Jugal Kishor Manna and after him by successive transfers these applicants became the owners thereof. At the northern side of the said plot being •16 decimals there was a pump house belonging to the O.P State of West Bengal and remaining •74 decimals of the plot belonged to the plaintiffs and also were in their continuous possession. It included a dwelling house of them and numerous food bearing trees. Prior to the filing of that suit being T.S. No. 121 of 1997 the plaintiffs filed another suit being T.S. No. 212 of 1996 in the Court of the ld. Civil Judge (Jr. Division), 1st Court, Ranaghat but the same being defective in material particulars and due to not issue of notice under section 80 C.P.C. on the O.Ps. had to be withdrawn by filing an application dt. 11.11.1997. That application for withdrawal was not disposed of by the ld. Civil Judge (Jr. Division), 1st Court, Ranaghat but the same being defective in material particulars and due to not issue of notice under section 80 C.P.C. on the O.Ps. had to be withdrawn by filing an application dt. 11.11.1997. That application for withdrawal was not disposed of by the ld. Civil Judge and no order was passed thereof and hence the plaintiffs filed another application to the same effect on 30.4.1998 when the Court allowed that petition of withdrawal. As there was extreme urgency for having a temporary injunction in that suit (T.S. No. 121/97), the plaintiffs filed an application under Order 39 Rules 1 & 2 and the Court after hearing the petitioners rejected the prayer for temporary injunction. The ground on which such rejection was made was the pendency of the said earlier suit (T.S. 212/96) before the Court between the same parties and over the same property and claiming the same relief. It was held by the Court that although a petition for withdrawal of the said earlier suit had been filed by the plaintiffs, that application had not been disposed of till that time and therefore both the suits could go simultaneously. Being aggrieved by that order the plaintiffs-petitioners preferred an appeal before the Court of District Judge, Nadia (Misc. Appeal No. 34/90) challenging that order as illegal and unsustainable. 2. The ld. District Judge after hearing both sides dismissed that appeal and affirmed that order of the trial Court on the ground that the appellants-plaintiffs had failed to make out a prima facie case in support of their story of possession and hence were not entitled to get an order of injunction as prayed for. He also found that the balance of convenience and inconvenience were not in favour of the plaintiffs. 3. Being aggrieved by that order again the plaintiffs-appellants have preferred the present revisional application challenging the order of the appellate Court as erroneous and liable to be set aside. At the time of admission of the revisional application this Court granted a prayer for interim order made by the applicants and directed both the parties to maintain status quo of the suit property till the disposal of the application. The O.Ps., the State of W.B., after having entered appearance have filed an application for vacating the said interim order granted in favour of the petitioners. The O.Ps., the State of W.B., after having entered appearance have filed an application for vacating the said interim order granted in favour of the petitioners. This order has now arisen out of a hearing of that application of the State of West Bengal. The applicants have filed affidavit-in-opposition denying and controverting the allegations made in the said application for vacating the interim order. 4. The contention of the petitioners as advance by Mr. Mrinal Kanti Das, ld. Counsel, are as follows. First, consequent upon the repeal of the West Bengal Land (Requisition & Acquisition) Act, 1948, the case of the O.Ps. suffers a total demolition. In view of section 7(A) of the said Act as amended in 1996 the Collector is to make an Award within a period of three years from the date of publication of the Notice in the Official Gazette and if such an Award is not made within this period, then the said Notice shall lapse. In the instant case, according to Mr. Das, no such Award was made within the said period and as such the Notification under section 4(1a) under the said Act had lapsed and had no force in law and this being a pure question of law, such a flaw gives a go-by to the entire case of the O.Ps. Secondly, as regards the merits of the matter, the Court below relied upon the entries in the Record of Rights, but his findings on this score are not correct as borne out by records. From the Record of Rights that have been annexed with the vacating application filed by the O.Ps. it would appear that the name of one Hajari Lal Biswas, the predecessor-in-interest of the plaintiffs, has been recorded as having •71 decimals of land in his possession and the Irrigation Department of West Bengal also being recorded as having •19 decimals in the said plot in suit. Mr. Das contends that the xerox copy of the Record of Rights which have been annexed do not show whether such Record of Rights was relating to the attestation stage or was to a finally published one. According to Mr. Mr. Das contends that the xerox copy of the Record of Rights which have been annexed do not show whether such Record of Rights was relating to the attestation stage or was to a finally published one. According to Mr. Das, from the Record of Rights annexed by his clients to their affidavit-in-opposition (Annexure-A) it would appear at page 10 that the stamp of final publication has been given thereon and at page 11 it is to be found that the plot No. 364 in suit has been recorded in the name of the petitioners in respect of •74 decimals of land and thus it is in full support of the case of the plaintiff-petitioners. Hence, according to Mr. Das, the Courts below fell into error by drawing the conclusion that the plaintiffs had no prima facie case, while the materials on record show that they have a strong prima facie case and consequently the balance of convenience or inconvenience is in their favour as they are in actual physical possession of the disputed •3 decimals of land of the suit plot for more than 30 years last. Thirdly, Mr. Das contends, the provisions of Order 23 of the C.P. Code will not be applicable to the present case although the earlier suit between the same parties on the selfsame subject-matter was pending when the present suit was filed and the earlier suit was not withdrawn with a liberty to sue afresh in view of the decisions reported in AIR 1928 Lahore 710, AIR 1930 Lahore 599, AIR 1985 P.H. 219 and AIR 1992 Kerala 85. Mr.Das also argues that the decision reported in 1994(1) SCC 1 cited by the O.Ps. will not be attracted in this case since the allegations of practising fraud upon the Court have nowhere been made. His further contention is that even if it is assumed that section 10 of the Code of Civil Procedure will be applicable here, no such application under this section has ever been filed by the defendant/O.Ps. in the Courts below and more-over, such provision do not envisage the dismissal of the later suit and even assuming that the later suit is stayed, even then there is no bar in passing interlocutory orders therein. In support of this contention he refers to the decision reported in AIR 1980 Kerala 161 and also AIR 1975 Gowhati 40. in the Courts below and more-over, such provision do not envisage the dismissal of the later suit and even assuming that the later suit is stayed, even then there is no bar in passing interlocutory orders therein. In support of this contention he refers to the decision reported in AIR 1980 Kerala 161 and also AIR 1975 Gowhati 40. The last contention of Mr. Das is that a point has been taken by the O.Ps. that an order under , the provision of West Bengal Public Land (Eviction of Unauthorised Occupants) Act,1976 as amended, has been passed by the Sub-Divisional Magistrate, Rananghat on 24.7.1998 the petitioner No.1 has been asked to vacate and deliver the possession of the suit land and as the said Act is a Special Act, the Civil Court cannot interfere. According to Mr. Das, it is a well settled principle that Civil Court will interfere with the orders of statutory authority if passed in violation of the principle that Civil Court will interfere with the orders of statutory authority if passed in violation of the principles of natural justice. He refers to the decision reported in 1990(2) C.L.J. 405 in support of his contention. Mr. Das then submits that the principle that when there are concurrent findings given by both the Courts below on question of facts, the revisional jurisdiction of this Court becomes limited and it should refrain from interfering with such findings will not be applicable here because of the special feature that the trial Court did not touch upon the questions of fact which were dealt with by the appellate Court so much so that it cannot be said that both the Courts gave their identical findings on the same questions of facts. In view of these reasons Mr. Das emphasised, the interim order granted by this Court should remain intact till the disposal of this revisional application. The O.Ps. in their petition for vacating the said interim order granted by this Court have disputed and denied the material allegations made by the revisional applicant and have stated as follows. The State of West Bengal started an acquisition proceeding in 1971 in respect of the suit plot for the purpose of possessing a portion of that plot to instal a pump house and construct a deep tube-well to supply water to the villagers for the purpose of irrigation of their lands. The State of West Bengal started an acquisition proceeding in 1971 in respect of the suit plot for the purpose of possessing a portion of that plot to instal a pump house and construct a deep tube-well to supply water to the villagers for the purpose of irrigation of their lands. Ultimately they acquired 0.19 decimals of land of the eastern side of the suit plot No. 364 on 07.1.1971 under section 4 of the West Bengal Land (Requisition and Acquisition) Act, 1948 under a Notification dated 3.10.1972(Annexure-A). Thereafter the Govt. installed a deep tube-well on the acquired portion of the said plot while a portion of that 0.19 decimals of acquired land was used as pathway by the staff of the pump house and also by the villagers for their ingress and egress to Irrigation Centre. But the plaintiffs have been unauthorisedly trying to occupy that portion by constructing bathroom over the said pathway and during a demarcation programme it was found that the plaintiffs were in unauthorised occupation on that pathway and therefore he gave an undertaking to the Government officials to dismantle the said unauthorised structure by 7.12.1996 and eviction proceeding was started before the Sub-Divisional Magistrate, Ranaghat dt. 24.7.1998 against the plaintiff under the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1976 whereunder the plaintiff was found to be an unauthorised occupant in respect of the said pathway leading to the pump house and accordingly he was directed to make over possession of that peace of Govt. land to its owner (Annexure-D). This finding of the Sub-Divisional Magistrate, Ranaghat may be treated as a finding of fact by a competent authority. The plaintiff challenged this order before this Court under Article 227 of the Constitution but unsuccessfully. 5. The further case of the O.Ps. is that before filing this T.S. No.121 of 1991 out of which the present application for temporary injunction arose the plaintiffs filed another Title Suit being T.S. No.212/96 over the self-same property and between the self-same parties and concerning the same cause of action and while that earlier suit was pending the plaintiff filed this present suit without getting that earlier suit withdrawn or without taking any liberty to file a fresh suit on the same cause of action. The contention of the O.Ps. The contention of the O.Ps. is that the later suit becomes vitiated by illegality and is of no consequence and if for the sake of argument it is taken as lawful, even then the provisions of section 10 will be applicable and all further proceedings of the subsequent suit would become stayed till the disposal of the earlier suit. It is contended by the ld. Advocate for the O.Ps. that since the plaintiff suppressed the fact of pendency of the earlier suit at the time when the later suit was filed and even when the temporary injunction-petition in question was being heard, the trial Court rightly rejected the petition for temporary injunction on the ground that one who claims equity must come with clean hands. It is the further contention on behalf of the O.Ps. that the interim order granted by this Court directing both the parties to maintain status quo of the suit property till the disposal of the revisional application should be vacated in view of the reasons that the plaintiff had failed to prima facie establish his title or possession in respect of the disputed portion of the suit property and also in consideration of the fact that balance of convenience and inconvenience and the chance of sufferring of irreparable loss lie in favour of the defendant-O.Ps., they remaining restrained from giving effect to a benevolent Govt. scheme, namely, distribution of water to the cultivators from the deep tube-well to be constructed on the suit plot. The further ground for vacating the said injunction order, according to ld. Advocate for the O.Ps. scheme, namely, distribution of water to the cultivators from the deep tube-well to be constructed on the suit plot. The further ground for vacating the said injunction order, according to ld. Advocate for the O.Ps. is that in view of the application of the mandatory injunction of section 10 of C.P.C. the second suit that is the present suit was to automatically stand stayed during the pendency of the first suit which was subsequently allowed to be withdrawn by the Court below under its order dated 30.4.1998 without any liberty to file a fresh suit because in consequence of all these the second suit is to be recorded as without jurisdiction and not maintainable in law in view of the provisions of Order 23 Rule 4 C.P.C. For, the withdrawal of the first suit without liberty to file any second suit would mean that the plaintiffs have abandoned their right as envisaged in sub-rule 1 of Rule 1 of Order 23 of the C.P.C. From that point of view also there will be no prima facie case on the part of the plaintiff to make out. It is also submitted that injunction order if allowed to persist would create hard hardship and inconvenience not only to the defendants but also to the members of public at large coming to the pump house in connection with their problem of irrigation water. In support of the above contention the ld. Advocate has cited the decision reported in AIR 1987 SC 88 . 6. The sole question falling for determination in this order is whether the plaintiffs revision-petitioners are entitled to get interim order of injnnction and, for that matter, whether the interim relief granted by this Court in favour of the plaintiff should be continued or whether, as prayed for by the O.Ps., it should be vacated. The well-known position in this respect is that in order to be entitled to get such an interim relief or temporary injunction during the pendency of the main matter the plaintiff-petitioner should make a prima facie case in support of his alleged right, title, interest and possession. Secondly, it should be shown that the balance of convenience and inconvenience is in his favour and thirdly, it also must be shown that the plaintiff will suffer irreparable loss if such a relief is not granted. 7. Secondly, it should be shown that the balance of convenience and inconvenience is in his favour and thirdly, it also must be shown that the plaintiff will suffer irreparable loss if such a relief is not granted. 7. So far as the first criterion is concerned it may be noted that the plaintiff has not produced any document showing their title to the disputed land. They have not given the Court to understand as to wherefrom originally they derived their title to the suit property. It is their case that the plaintiff was owner in respect of a •74 decimals of land in the suit plot No. 364 and the defendants had interest in respect of the remaining •16 decimals of land where as the case of the defendant-O.Ps., the State of West Bengal, is that they acquired •19 decimals. The plaintiffs case is that the disputed •3 decimals of land which the defendants are now claiming to be their own actually belongs to them whereas the defendants case is that this •3 decimals of land are part and parcel of their acquired land and they have been using it as a pathway and approached road for going to the pump house. 8. In support of their story the defendants have produced a good number of documents including the papers of the acquisition proceedings being L.A. Case No. 13(4) 70-71 (Annexure-A). Thus from the certificate of possession of land made over to the O.Ps. in Form No. 21 it appears that 0'19 decimals of land of the suit plot No. 364 (eastern portion) was taken over by the defendants from the earstwhile owner on 7.1.1971. Against the genuineness of this vital document the defendants have not thrown any challenge. It is not their case that this document is ingenuine or unreliable or created for the purpose of the suit in any way. On the other hand, these documents bearing the Stamp and Seal of the office of the Special Land Acquisition office of the Govt. appears to be quite a genuine and valid document showing taking of possession by the defendants on the above mentioned date. This goes to prima facie show the alleged title, interest and possession of the defendants and prima facie it demolishes the case of the plaintiff that the defendants got only •16 decimals of land in consequence of the land acquisition proceeding No. 13(4) 70-71. This goes to prima facie show the alleged title, interest and possession of the defendants and prima facie it demolishes the case of the plaintiff that the defendants got only •16 decimals of land in consequence of the land acquisition proceeding No. 13(4) 70-71. The defendants have also produced the copy of the order of the Sub-Divisional Magistrate, Ranaghat passed in M.P. Case No.1 of 1998 dt. 24.7.1998 under section 4(1) of the W.B. Public Land (Eviction of Unauthorised Occupants) Act, 19'76 (Sambhu Ch. Sarkar) under which the plaintiff (Sambhu Ch.Sarkar) was declared as an unauthorised occupant in respect of .5 decimals of land of the suit plot forming the approach road or pathway to the pump house and accordingly he was directed to deliver possession thereof to the owner-State of West Bengal. This order, according to the ld. Advocate for the O.Ps. was challenged by the plaintiff before this High Court by way of revisional application, but the same was dismissed. Thus, according to the Id. Advocate for the O.Ps., remains still force. 13esides this the O.Ps. have filed another important piece of document, namely, L.R.R.O.R. the entries of which appear to be supporting the story of the defendants-O.Ps. The plot No. 364 appears to have been recorded in the names of both the parties, the plaintiff having •71 decimals of land and the defendant-O.Ps. having •19 decimals of land in respect thereof. The Court below appears to have rightly relied upon this document of possession in view of its being the eldest one the Id. appellate Judge has also pointed out in this connection that after making a scrutiny into the entries of the Record of Rights placed before him by both the parties he fi.l1ds that the said L.R.R.O.R. has although made an entry showing that •71 decimals of land was in the name of the plaintiffs and •16 decimals of land in the name of the defendants at the stage of attestation, when it was finally published the said mistake was corrected and •71 decimals of land was recorded as having been under possession of the defendants. The Ld. The Ld. District Judge has also given the reason that from the documents filed by the State before him he was satisfied that there was a settlement with the State of West Bengal by virtue of which the possession of the disputed portion of land that is the approach road was taken by the State of West Bengal. 9. From the documents which I have discussed above, particularly the certificate of possession of the L.A. proceeding (Annexure-A) I am of the considered opinion that the O.Ps.-State of West Bengal acquired title and possession in respect of •19 decimals of land in the suit plot which included the disputed •03 decimals of land which is the bone of contention between the parties. The plaintiff has failed to prima facie make out their story that they have been in possession of •7 4 decimals of land out of the suit plot and the defendants were in possession in respect of only •16 decimals of land. In other words, the plaintiffs has not been able to prima facie make out their case that they had title and interest in respect of the •03 decimals of land out of the suit plot which is used as a pathway as alleged. As an unauthorised occupant is of no avail. 10. So far as the other two criteria are concerned, namely, the question of balance of convenience and inconvenience and of irreparable loss, the plaintiffs also has failed to convince the Court. It is admitted that the State of West Bengal has undertaken a public scheme of construction of deep tube-well to distribute water amounts the cultivators for the purpose of irrigation of their lands and it is the allegation of the defendants-O.Ps. that the plaintiff having obstructed the egress and ingress to the pump house along the disputed portion of the land the entire scheme has became halted. So, if the plaintiff is allowed the temporary injunction then a beneficial public purpose will be hampered and from that point of view the balance of convenience and inconvenience and also the question of irreparable loss appears to be in favour of the defendants and not the plaintiffs. 11. So, if the plaintiff is allowed the temporary injunction then a beneficial public purpose will be hampered and from that point of view the balance of convenience and inconvenience and also the question of irreparable loss appears to be in favour of the defendants and not the plaintiffs. 11. Therefore, considering the above discussion I am inclined to hold that this is not a fit case for granting interim relief to the plaintiffs/petitioners during pendency of the revisional application before this Court and accordingly, the petition of the O.Ps.-State of West Bengal for vacating the interim order already granted by this Court being found justified is allowed. The order of this Court dated 18.8.1998 directing the parties to maintain status quo of the suit property till the disposal of the revisional application stands vacated. Interim order vacated.