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2006 DIGILAW 740 (CAL)

GOBINDA KOLEY v. BUDHADEB HAZRA

2006-11-28

SANJIB BANERJEE

body2006
Before Mr. Justice Sanjib Banerjee, J. ( 1 ) THE short question that has been raised in this revisional application is whether the learned Appellate Court below could grant an order of injunction in favour of the plaintiffs/opposite parties restraining the petitioner from disturbing the plaintiffs' alleged possession of an open land without ascertaining as to whether the plaintiff was in possession of such land. ( 2 ) THE plaintiffs' application under Order 39 Rules 1 and 2 made in a suit seeking declaration and injunction in respect of immovable property, was dismissed. The appeal was allowed by restraining the defendants from interfering with the plaintiffs' possession of the suit property. ( 3 ) THE Appellate Court's criticism of the trial Court's order is found in the following lines: - "in the impugned order learned Court below observed. . . though according to the title deed of gift and the R. O. R S. it appears that the plaintiffs and the proforma defendants are the owner of the suit property but from the document of the defendants i. e. the certified copy of the registered sale deed dated 16. 1. 1932 which is the prior deed of the plaintiffs deed of gift, it is trite that the defendants predecessor and subsequently the defendants have certain interest over the suit property. Yes, that question is supposed to be decided in the suit. But that deed does not totally negate the claim of the plaintiffs. Defendants themselves admitted that the predecessor in interest of the plaintiffs also owned the bigger part of the land of which suit property is a pond. There was absolutely no reason to hesitate in holding that the plaintiff had a prima facie case. " ( 4 ) FOLLOWING such criticism of the lower Court's order, the Appellate court proceeded to restrain the defendant Nos. 1 to 3 from interfering with the possession of the plaintiffs over the suit property till the disposal of the suit. However, it does appear from the appeal Court's order that the appellate Court had found that the plaintiff was actually in possession. ( 5 ) THERE was no prima facie satisfaction of the first Court on this aspect. ( 6 ) MR. However, it does appear from the appeal Court's order that the appellate Court had found that the plaintiff was actually in possession. ( 5 ) THERE was no prima facie satisfaction of the first Court on this aspect. ( 6 ) MR. Aniruddha Chatterjee, learned Advocate appearing in support of this application has cited the judgment reported at 2006 (3) SCC 312 for the proposition that unless at the interlocutory stage the Court came to a finding that the party seeking an order of injunction restraining the other party from interfering with his possession, was actually in possession, no injunction could be granted. He has placed Paragraph -5 of that judgment which is as follows : - "it is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an adinterim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one Court had found no reason to grant an ex parte order of injunction and the Appellate Court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial Court, since the appeal was only against the refusal of an ad-interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial Court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the Court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction. " ( 7 ) IN the instant case the difficulty is in demonstrating who is in possession of a vacant piece of land. Both sides claimed possession by virtue of their respective claims as regards title to the land in question. However, neither the first Court nor the appeal Court embarked on any exercise to ascertain, even on a prima facie basis, as to whether such claim was supported by the documents or other material. ( 8 ) I, therefore, direct that the appeal be heard de novo and the Court has to ascertain as to which party was or is in possession of the suit property. In determining such question, the respective contentions of the parties based on the documents on which they found title should be considered. The appeal should be disposed of within a period of eight weeks from the date of communication of this order. ( 9 ) THE order dated March 31, 2006 passed in Misc. Appeal No. 129 of 2004 is set aside. All the parties are restrained from dealing with or disposing of the suit premises or any part thereof. No party will be entitled to the usufructs from the suit property till the appeal is decided. The future rights of the parties, pending disposal of the suit, will be governed by the decision in the appeal. ( 10 ) I make it clear that I have not adjudicated upon the merits of the rival claims. ( 11 ) THE revisional application is allowed. There will, however, be no order as to costs.