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2003 DIGILAW 192 (CAL)

KALIDAS MONDAL v. ABDUL HOSSEIN

2003-04-22

SUBHRO KAMAL MUKHERJEE

body2003
S. K. MUKHERJEE, J. ( 1 ) THIS is to consider a revisional application challenging the judgment and order dated December 6, 1995 passed by the learned Additional District Judge, Third Court at Barasat, District - North 24 Parganas in Miscellaneous Appeal No. 23 of 1993 reversing order No. 9 dated January 22, 1993 passed by the learned Munsif, Second Court at Basirhat, District- North 24 Parganas in title suit No. 188 of 1992. ( 2 ) THE defendant/petitioner in this revisional application, Kalidas Mondal, instituted title suit No. 74 of 1979 in the Court of the learned Munsif, Third Court at Basirhat against Panchu Karmakar and others for recovery of possession under section 6 of the Specific Relief Act of 1963. The plaintiff/opposite party No. 1 in this revisional application was defendant in the said suit. ( 3 ) BY judgment and decree dated July 31, 1990 the learned Munsif decreed the suit on contest with costs against the contesting defendants and ex parte against the other defendants without costs. The plaintiff in the said suit got a decree for recovery of possession of the suit room. It was declared that the possession of the defendants was unlawful and they were directed to vacate the suit room within sixty days from the date of the decree. In default, however, liberty was granted to the plaintiff to recover khas possession of the suit room in execution of the decree. The defendants were restrained by a decree of permanent injunction from changing the nature and character of the suit premises and the plaintiff was granted a decree for mesne profits in preliminary form at the rate of Rs. 50/- per month from July 6, 1979 till recovery of possession. ( 4 ) THE opposite party No. 1 in the present revisional application moved a revisional application under section 115 of the Code of Civil Procedure before this Court, which was registered as Civil Order No. 1100 of 1999. Tarun Chatterjee, J. (as the Hon'ble Chief Justice then was) by judgment and order dated August 24, 1992 allowed the said revisional application in part. The decree passed by the learned Munsif granting permanent injunction and the preliminary decree for mesne profits were set aside. However, the decree for recovery of possession has been affirmed. Tarun Chatterjee, J. (as the Hon'ble Chief Justice then was) by judgment and order dated August 24, 1992 allowed the said revisional application in part. The decree passed by the learned Munsif granting permanent injunction and the preliminary decree for mesne profits were set aside. However, the decree for recovery of possession has been affirmed. The opposite party No. 1 in this revisional application applied for review of the said judgment and order dated August 24, 1992 passed in Civil Order No. 110 of 1991, but Chatterjee, J, rejected the said application for review on February 3, 1993. ( 5 ) THE petitioner in this revisional application put the decree for recovery of possession passed by the learned Munsif in title suit No. 174 of 1979 into execution and the said proceeding has been registered as Title Execution case No. 2 of 1991. ( 6 ) THE opposite party No. 1 in this revisional application instituted Title Suit No. 188 of 1992 in the Court of the learned Munsif, Second Court at Basirhat, inter alia praying for declaration of his title to the extent of his 2/3rd share in the suit land and, also, for declaration of his sub tenancy right over the entire suit premises. The said plaintiff in connection with the said Title Suit No. 188 of 1992 filed an application for temporary injunction under Order 39, rules 1 and 2 read with section 151of the Code of Civil Procedure to restrain the defendants in the said suit, including the petitioner in the present revisional application, not to disposes him from the suit premises by executing the decree passed in title suit No. 174 of 1979. ( 7 ) THE learned munsif, Second Court at Basirhat by his order No. 9 dated January 22, 1993 rejected the said application for temporary injunction. ( 8 ) THE opposite party No. 1 in this revisional application preferred Misc. Appeal No. 23 of 1993 challenging the said order passed by the learned Munsif. The said appeal was eventually transferred to the Court of the learned Additional District Judge, Third Court at Barasat, District-North 24 Parganas and the learned Additional District Judge allowed the appeal. The parties have been directed to maintain status quo in respect of the possession and the nature and character of the suit property till the disposal of the suit. The said appeal was eventually transferred to the Court of the learned Additional District Judge, Third Court at Barasat, District-North 24 Parganas and the learned Additional District Judge allowed the appeal. The parties have been directed to maintain status quo in respect of the possession and the nature and character of the suit property till the disposal of the suit. The learned trial Judge was directed to dispose of the suit within four months from the date of the receipt of the lower Court's records by him. ( 9 ) BEING aggrieved, the defendant No. 2 in Title Suit No. 188 of 1992 has come up with this application. ( 10 ) MR. Samiran Giri, learned advocate, appearing in support of the revisional application, vehemently argued that the learned Additional District Judge committed serious injustice by granting an order of injunction against the petitioner inasmuch as the petitioner is prevented from taking advantage of a decree passed in his favour by a competent Court particularly, when such decree has been affirmed up to this Court. Mr. Giri submits that virtually the petitioner has been restrained from executing a decree passed in his favour by a competent Court of law and as such the order is bad as it is opposed to the provisions of sub-section (a) and (b) of section 41 of the Specific Relief Act. ( 11 ) MR. Bidyut Kumar Banerjee, learned senior advocate, appearing for the opposite party No. 1 however, supported the order impugned in the revisional application. He drew my attention to the provisions of sub-section (4) of section 6 of the Specific Relief Act, 1963 and argued that although a decree has been passed in Title Suit No. 174 of 1979, but as the said suit was filed under sub-section (1) of section 6 of the Specific Relief Act, 1963, the present Title Suit No. 188 of 1992 by the opposite party No. 1 is competent to establish his title to such property. ( 12 ) SECTION 6 of the Specific Relief Act, 1963 runs as under:"section 6. Suit by person dispossessed of immovable property.- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Suit by person dispossessed of immovable property.- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought- (a) after the expiry of six months from the date or dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order of decree be allowed. (4) Nothing in this section shall bar any person from suing to establishing title to such property and to recover possession thereof. " ( 13 ) THE said section 6 of the Specific Relief Act, 1963 corresponds to section 9 of the Specific Relief Act, 1877, which was itself based on section 15 of the Limitation Act of 1859. The object and scope of section came up for consideration before the Court from time to time. Sub section (4) of section 6 does not bar a person from instituting a suit to establish his title to an immovable property and to recover possession thereof even though the suit instituted against such a plaintiff under sub section (1) of section 6 of the said Specific Relief Act, 1963 has been decreed. There is no bar to bring a regular suit founded upon title. The legislature did not intend to give the proceeding under sub section (1) of section 6 of the Specific Relief Act, 1963 the character of finality. The party defeated in a suit instituted under sub section (1) of section 6, therefore, can institute a suit before a competent civil Court for establishing his title in respect of the property in dispute and for recovery of possession on the basis of this title. A defendant, who has lost in the suit under sub section (1) of section 6, can apply in the regular suit instituted by him on the basis of title to restrain the plaintiff in the earlier suit from interfering with his possession even without surrendering his possession before filing a suit on the basis of title. ( 14 ) LOWER Burma Chief Court in Mg. Lu Mg. and Ors. v. Maung Pu and Anr. ( 14 ) LOWER Burma Chief Court in Mg. Lu Mg. and Ors. v. Maung Pu and Anr. , reported in AIR 1994 Lower Burma 11 while interpreting sub section (2) of section 9 of Specific Relief Act, 1877 held that the said section did not bar a regular suit on title. The Bombay high Court in case of Mari Doddatamma Markundi v. Santaya Ramkrishna Pai Kolle reported in AIR 1922 Bombay 216 held that a person in possession against whom a decree under section 9 of the Specific Relief Act, 1877 has been passed in favour of another person, could bring a suit to establish his title to the land and for an injunction retraining the other person from executing his decree. The Madras High Court in the case of R. Gopalakrishna Pillai v. P. S. Venkatesam Pillai reported in 1967 (1) Madras Law Journal 346 observed as under:"there is nothing in the language of the section to take away the remedies available to a person in possession of property as of right, and entitled to remain in possession. Of course it goes without saying that when there is a valid decree for possession against a plaintiff, he will not be granted an injunction from executing that decree. If the legality of the decree is not questioned, a decree-holder cannot be restrained from executing the decree as between the parties to the decree. Section 9 provides only summary and speedy remedy to a person dispossessed. The title of the possession is out side the scope of the suit. When a suit on title questioning the order in the summary suit is filed, in one sense the decree or order for possession is impugned, and in manner provided by law as no appeal is competent. The object of the title suit is in substance to have the summary order for possession set aside on the basis of title and right to present possession. In such a suit if the plaintiff in possession has claimed declaration of his title, in my view it may properly be followed by the consequential relief of injunction. " ( 15 ) A division Bench of Allahabad High Court in the case of Chunni and Anr. v. Sullahar and Anr. In such a suit if the plaintiff in possession has claimed declaration of his title, in my view it may properly be followed by the consequential relief of injunction. " ( 15 ) A division Bench of Allahabad High Court in the case of Chunni and Anr. v. Sullahar and Anr. reported in AIR 1972 Allahabad 418 observed that the relief sought being for a declaration and for an injunction restraining the defendant from interfering with the peaceful possession of the plaintiff either by executing the decree or through any other means or ways it could not be said that the suit has been instituted either to restrain the defendant form prosecuting a judicial proceeding or from instituting the execution application within meaning of clauses (a) and (b) of section 41 of the Act. Allahabad High Court relied upon the decision in the case of Mari Doddatamma Markundi (supra ). ( 16 ) IN the case of Mohammad Hussain Suleman Shaikh and another v. Batukbhai Valjibhai and other reported in AIR 1984 Gujarat 66 it has been observed that in a case where the plaintiff has been dissatisfied with a decree under section 6 of the said Act he could immediately institute a suit for declaration of his title and he could claim the available consequential relief. If he has been in possession of the suit property, all that he could pray for was that status quo be maintained and an injunction be issued restraining the defendant from dispossessing him. ( 17 ) SIMILAR views have been expressed in the case of Gouranga Chandra Deb v. Satish Chandra Dev and others reported in AIR 1955 Tripura 13 and Laisram Noyon Singh v. Miajan Mia and others reported in AIR 1969 Manipur 49 . ( 18 ) IN the case of Raj Gopal Bhattacharji and another v. Sarat Kumari Debi reported in AIR 1928 Calcutta 758 a Division Bench of this Court, however, held that where it was decided in a suit under section 9 of the Specific Relief Act, 1877 that the plaintiff was not in possession of a certain property from a certain date, the question covered by that finding could not be re-agitated between the parties and was res judicata in a suit for possession on declaration of plaintiff's title. The aforesaid decision has been followed in a subsequent Division Bench judgment in the case of Hridayanath Ray v. Prabodhchandra Khan reported in AIR 1933 Calcutta 923. It was observed where the time at which the plaintiff was dispossessed was a matter of directly and substantially in issue in connection with the question of limitation and that was, also a question directly and substantially in issue in a case under section 9 of the Specific Relief Act, 1877 between the same parties, litigating under the same title, in a Court competent to try the subsequent suit and a question, which was finally decided by that court, the decision would operate as res judicata in the subsequent suit. ( 19 ) MR. Giri, however draws my attention to a decision in the case of Lakhmi Chand v. Sarala Devi reported in AIR 1988 Punjab and Haryana 146 where it has been observed that in view of the language of section 41 of the Specific Relief Act, 1963 temporary injunction to restrain a tenant from executing a decree for possession could not be granted. The learned judge of the Punjab and Haryana High Court preferred to dissent from the views expressed by Bombay High Court, Allahabad High Court and Gujarat High Court. ( 20 ) MY reading of sub section (4) of section 6 of Specific Relief Act, 1963 is that the said section does not bar any person to bring a regular suit founded upon his title in respect of the immovable property and to recover possession thereof even though a suit instituted under sub-section (1) of section 6 of the said Act has been decreed against him. A regular suit for title land recovery of possession is maintainable in view of the language of sub-section (4) of section 6 of the said Act and the legislature did not intend to give the proceeding under section 6 (1) of the said Act in character of finality. The only point, which arises for determination in such a suit, is whether the plaintiff was in possession within six months of his dispossession. The defeated party can bring a suit for declaration of his title and for recovery of possession and it is his duty in the subsequent suit to prove his title. The only point, which arises for determination in such a suit, is whether the plaintiff was in possession within six months of his dispossession. The defeated party can bring a suit for declaration of his title and for recovery of possession and it is his duty in the subsequent suit to prove his title. If the plaintiff in the subsequent suit is in possession, that is, the decree passed in the earlier suit not yet having been executed against him, he can pray for maintenance of status quo and the court in the subsequent suit can pass an order restraining the defendants of the subsequent suit from disturbing the possession of the plaintiff in the said suit. ( 21 ) THE learned judge in the lower appellate Court found, as findings of fact, that the plaintiff/opposite Party No. 1 in the revisional application was in possession of the suit property and it was held by the learned judge in the lower appellate Court that it has been admitted before him that the plaintiff was, also, the owner of the suit property to the extend of 2/3rd share. The learned judge in the lower appellate Court, in my view, applied proper legal tests in considering the application for temporary injunction and rightly directed the parties to maintain status quo as regards possession and nature and character of the suit property. ( 22 ) I am therefore, not to interfere in revision. Accordingly, the revisional application is rejected without, however, any order as to costs. ( 23 ) HOWEVER, the learned trial judge is directed to dispose of title Suit No. 188 of 1992 positively by September 30, 2003 and, if necessary he will fix day-to-day hearing of the suit. The aforesaid direction is peremptory and mandatory and I authorise the learned trial Judge to refuse any prayer of adjournment by either of the parties. The learned Registrar (Administration) of this Court is directed to communicate a copy of this order to the Court of the learned Civil Judge (Junior Division), Second Court at Basirhat, District: North 24 Parganas for securing compliance of the direction for early disposal of the suit. Application rejected.