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2009 DIGILAW 1495 (JHR)

State of Jharkhand v. Shambhu Nath Prasad

2009-11-24

R.R.PRASAD, SUSHIL HARKAULI

body2009
Order We have heard learned counsel for the appellants, learned counsel for the respondent in this appeal and learned counsel for the intervenor. 2. An application for intervention being I.A. No. 3479 of 2009 is allowed. 3. Sri Mathura Prasad will be impleaded as the respondent no. 2 in the present appeal. 4. The existing respondent will be numbered as respondent no. 1 5. This appeal has been filed against the final order of a learned Single Judge dated 13.3.2008, by which it was directed that the petitioner-respondent-Shambhu Nath Prasad should be delivered possession of the property which consists of a building alongwith land. The offending part of the order by which the intervenor is aggrieved is contained in Paragraph-16 which says that the occupation of the premises, in question, by any person without any valid order from the Requisitioning Authority or the permission of the petitioner would be deemed to be unauthorized possession and, therefore, virtually, it has been directed by the impugned order of the learned Single Judge that anybody found in possession should be evicted. 6. This direction would hold good and valid for the appellants or anybody claiming title or right to possession through the said appellants or under the appellants. But in so far as this direction relates to persons claiming independent right i.e. independent of the appellants, the direction would be violative of the principles of natural justice inasmuch as those persons claiming independent right were not parties and have not been heard and yet they have been directed to be evicted. 7. It would, therefore, appear prima facie that this part of the order of learned Single Judge would have to be ultimately set aside. If this offending part is set aside the person claiming independent right, who has been dispossessed under the set offending part which is set aside, would be entitled to restitution of possession on the principles given in Section 144 of the Code of Civil Procedure. 8. The question before this Court today is whether such possession should be delivered back today pursuant to the Interlocutory Application moved by the intervenor being I.A. No. 3518 of 2009 or the restitution of possession should be indefinitely postponed till the decision in the appeal. 9. 8. The question before this Court today is whether such possession should be delivered back today pursuant to the Interlocutory Application moved by the intervenor being I.A. No. 3518 of 2009 or the restitution of possession should be indefinitely postponed till the decision in the appeal. 9. To our mind, it would be unfair and unjust to force a person evicted from a residential premises under the prima facie illegal order, that too in the circumstances mentioned below, to be allowed to remain on the streets while the petitioner-respondent, who has managed to obtain possession under the prima facie illegal order, is allowed to reap the fruits of such conduct and enjoy the possession. 10. The circumstances referred to above are, that after the intervenor came to know of the impugned order of learned Single Judge dated 13.3.2008, he came to this Court on 18.11.2009 by means of intervention application being I.A. No. 3479 of 2009 complaining of the threatened eviction and alleging that he was in occupation of a part of the premises in part performance of an agreement dated 27.6.1989 executed by the very person, who subsequently executed a sale-deed in favour of the petitioner-respondent in the year 2002. At that time, when the intervenor had approached this Court, he was still in possession. Unfortunately, because of the delay in hearing of the application for intervention and for want of an order protecting the intervenor's rights, the intervenor was evicted on 20.11.2009 i.e. two days after he moved the intervention application. Such eviction is corroborated by Annexure-B of I.A. No. 3518 of 2009, which has been moved for restoration of possession. These factors, prima facie, more than establish that the intervenor was in possession, he came to this Court for protecting his possession against the order of eviction, which had been passed without hearing the intervenor, this Court failed to hear the intervenor and to pass the protection order, and the petitioner-respondent took advantage of the delay by evicting the intervenor and obtaining possession of the entire premises. Delay in restitution of possession in such circumstances might encourage such tactics, which would not be healthy for the administration of justice. 11. Delay in restitution of possession in such circumstances might encourage such tactics, which would not be healthy for the administration of justice. 11. Therefore, we direct, as an interim measure, that the intervenor shall be put back into the possession of the portion of the premises, described in the agreement, a copy of which has been filed as Annexure to LA. No. 3479 of 2009 by the appellants. 12. The petitioner-respondent may file a detailed tounter affidavit within a week. 13. The intervenor will have one week thereafter to file rejoinder. 14. This matter will be 'listed on 9th December, 2009. 15. On that date, it will be determined finally whether the petitioner-respondent is able to establish his contention which at the moment is very difficult to accept, that the intervenor was never in possession of any part of the premises; and if such issue is determined in favour of the petitioner-respondent, necessary consequence may follow. 16. This order will be given effect to by the appellants and their officers within 48 hours.