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2009 DIGILAW 96 (CAL)

Dhirendra Nath Dey v. Anath Chandra Guin

2009-02-13

ASHIM KUMAR BANERJEE, PRASENJIT MANDAL

body2009
Judgment : BANERJEE, J. (1) The private respondents filed a pre-emption suit against one Bijoy Kumar Dey (hereinafter referred to as "Bijoy") and one Nakul Chandra Pramanik (hereinafter referred to as "Nakul") who were recorded owners of Plot No. 3275 Khatian No. 1435 under Mouza - Kota in the district of Burdwan. The private respondents obtained a decree as against the said Bijoy and Nakul and purchased the entire share in respect of the said plot measuring about 7.79 acres. The private respondents thereafter filed a Title Suit being Title Suit No. 20 of 1980 before the learned Munsiff, Second Court, Durgapur against Bijoy. The title suit was decreed in favour of the private respondents by the First Court on February 28, 1985. The decree, inter alia, provides as follows :-"The right, title and interest of the plaintiffs in Ka schedule land to the plaint is hereby declared. It is also declared that the defendant has been merely in permissive possession of the kha schedule land to the plaint as a licensee under the plaintiff. The defendant is hereby restrained by an order of permanent injunction from claiming any title in the ka schedule land or in any portion thereof and from erecting any structure in the suit property and from doing any act in respect of suit property prejudicial to the interest on the plaintiffs and from changing status-quo in nature of the suit property" (2) From the judgment and decree it reveals that the portion of the said Plot No. 3275 measuring about 9ft. x 6ft. was described as Kha schedule which was held to be in permissive possession of the predecessors of the appellants as licensee under the private respondents. The First Court perpetually restrained the appellants from erecting any structure in the suit property and from doing any act in respect of the suit property prejudicial to the interest of the plaintiffs therein and from changing status quo in the nature of the suit property. The said decree was upheld upto this Court; The Division Bench dismissed the appeal filed by the appellants on May 22,1997. The said decree was upheld upto this Court; The Division Bench dismissed the appeal filed by the appellants on May 22,1997. (3) On September 28, 2005 the learned Advocate acting on behalf of the private respondents wrote to the District Magistrate to the following extent :- "That in this respect I request you on my behalf of my aforesaid client to arrange to give the possession of my clients land which is forcibly and unauthorisedly occupied by the Late Bijoy.Dey and now his sons Dhiren Dey + 2 others. I, therefore, request you on behalf of my client to take appropriate action against the occupation and hand over the land to my client as mentioned of my previous letter as an earliest and do justice thereby." (4) Ultimately by letter dated February 16,2006 the Sub-Inspector of Budbud Police Station asked the private respondents to deposit Police cost in treasury for the purpose of recovery of possession in respect of Plot No. 3275. It further appears that the private respondents duly deposited the cost and then filed an application under Article 226 of the Constitution before the learned Single Judge being W.P. No. 4054 of 2006, inter alia, praying for the following reliefs :-"(a) A writ in the nature of Mandamus directing the Sub-Divisional Officer, Durgapur, Respondent No. 5 herein and the Officer-in-Charge, Budbud Police Station being Respondent No. 6 herein to take necessary steps as per order dated 07.10.05 passed by the District Magistrate and Collector, Burdwan forthwith. (b) A writ in the nature of Mandamus directing the respondents to take necessary steps to restore the possession of the plot No. 3275 measuring about 7.79 acres of land under Kota Mouza in which right, title and interest have been declared by the learned Civil Court in Title Suit No. 20 of 1980 which was affirmed by the learned First Appeal Court as well as Honble High Court. (c) A writ in the nature of Mandamus directing the respondent No. 5 to take necessary action on the basis of the written complaint lodge by the petitioners on 13.11.2005, 19.11.2005 FORTHWITH. (d) A writ in the nature of certiorari asking the respondent to produce the entire records relating to the case before this Honble Court so that a conscionable justice may be done. (e) Rule Nisi in terms of prayers (a), (b), (c) and (d) above. (d) A writ in the nature of certiorari asking the respondent to produce the entire records relating to the case before this Honble Court so that a conscionable justice may be done. (e) Rule Nisi in terms of prayers (a), (b), (c) and (d) above. (f) Grant an interim order directing the respondents No. 4 and 5 to take necessary action in terms of the order dated 07.10.2005 passed by the District Magistrate and Collector, Burdwan in respect the plot No. 3275 in which right, title and interest have been declared by the learned Civil Court till the disposal of the application. (g) Grant an interim order directing the respondents, particularly the Respondent No. 5 to take necessary action on the basis of the written complaint lodged by the petitioners dated 13.11.2005, 19.11.2005, 2.12.2005 and 4.12.2005 forthwith till the disposal of the application. (h) To pass such other or further order or orders as your Lordship may deem fit and proper." (5) On perusal of the writ petition it appears that the writ petitioners therein made a grievance that although they had obtained decree from the civil Court they were not in a position to recover possession. In paragraph 8 of the petition the writ petitioners claimed that the sons of Late Bijoy Kumar Dey, the judgment debtor in Title Suit No. 20 of 1980 "illegally and forcibly taken possession of plot No. 3275 in the month of September, 2005". The petitioner also stated therein that the District Magistrate and Collector was requested to take necessary action against the said illegal occupation. In paragraph 11 of the said petition the writ petitioners contended that they already demanded justice to the respondent authorities with a request "to take necessary steps and restore the possession". In paragraph 16 of the petition the petitioners stated that the appellants were trying to "remain in possession". It is curious to find that the operative part of the said decree was quoted in paragraph 5 of the said petition wherein the sentence by which the First Court declared that the defendants therein were the licensee under the plaintiffs therein in respect of the kha schedule property, was conspicuously skipped out. We further find with surprise that the private respondents did not make the appellants parties to the said writ proceedings. We further find with surprise that the private respondents did not make the appellants parties to the said writ proceedings. The writ petition was heard by the learned Single Judge and dispose of by judgment and order dated July 7, 2006. The order of His Lordship is quoted below :-"The petitioner in his supplementary affidavit has annexed a letter dated 16th February, 2006. By the said letter the Superintendent Inspector, Budbud Police Station has called upon the petitioner to deposit monies for Police picket into the treasury. The petitioner on 24th February, 2006 has deposited the sum in the Durgapur Treasury as will appear from P-9 of the Supplementary affidavit affirmed on 15th March, 2006. In spite of deposit of the said sum the Police authorities have not posted Police picket. Counsel for the respondent authorities submits that the writ Court is not an executing Court and therefore should not seek to execute decree dated 8th February, 1985. Having heard the parties I direct the Police authorities to give effect to its letter dated 16th February, 2006 within a period of seven days from today. With the above directions the writ petition stand disposed of. Affidavit- in-opposition filed by the State respondents be kept on record." (6) It seems that the Police authority initially did not act upon the request of the private respondents even after passing of the said order. The private respondents filed contempt proceeding before the learned Single Judge. Under the threat of contempt the Police authorities ultimately granted Police help. It was contended on behalf of the appellants that they were dispossessed by the private respondents with Police help on April 12, 2008. (7) Being aggrieved and dissatisfied, the appellants preferred the instant appeal which was heard by us on the above mentioned dates. (8) Mr. Kashinath De, learned Counsel appearing for the appellants, contended as follows :- (i) The private respondents purposely did not make the appellants party to the said writ proceeding although they were necessary and proper party. On the said ground alone the order impugned should be set aside and the respondent should be given back possession. (ii) Since the subject controversy involved herein was a private dispute between two groups of private individuals the writ Court should not have interfered and that too, under Article 226 of the Constitution. On the said ground alone the order impugned should be set aside and the respondent should be given back possession. (ii) Since the subject controversy involved herein was a private dispute between two groups of private individuals the writ Court should not have interfered and that too, under Article 226 of the Constitution. (iii) There was no express decree for recovery of possession which could be executed as against the appellants. Hence, the private respondents could not have dispossessed the appellants on the strength of the said declaratory decree with Police help obtained in a proceeding under Article 226 of the Constitution. (iv) Assuming the appellants were in illegal possession they could not be removed and/or dispossessed by force and that too in the presence of the Police authorities. (v) The decree specifically provided that the appellants were licensee in respect of "kha"schedule property and they could not be dispossessed from "kha"schedule property even on the strength of the decree relied upon by the private respondents. (9) In support of his contention Mr. De cited the following decisions : (i) 1991, Volume 1, Calcutta Law Journal, Page - 434, (Smt. Usha Ghosh v. Rabindra Nath Das and Ors) (ii) 2004, Volume - I, Supreme Court Cases, Page-768 (Rama Gowda (dead) by LRS v. M. Varadappa Naidu (dead) by LRS and Anr.). (iii) 2005, Volume -VI, Supreme Court Cases, Page -106 : (2005)2 WBLR (SC) 471 (Union of India and Ors. v. Narender Singh). (iv) 2006, Volume -IV, Supreme Court Cases, Page-501 : (2006)1 WBLR (SC) 995 (P. R. Murlidharan and Ors. v. Swami Dharmananda Theertha Padar and Ors.). (v) 2008, Volume - II, Calcutta Law Times, Page -340 (HC) (Divine Grace Apartments Owners Welfare Association and Anr. v. Mussammat Anis Fatma Begum and Ors) (10) Opposing the appeal Mr. Kalyan Bandyopadhyay learned Senior Counsel appearing for the private respondents, contended as follows :-(i) In case this Honble Court found that the appellants were necessary parties the order could be set aside by remanding the matter back to the learned Judge by impleading the appellants parties to the said proceedings. (ii) However, since the private respondents were declared as owner of the premises and such decree was upheld upto this Court in second appeal they could not be restored possession. (iii) The subject property was a vacant land and it was all along under the possession of the private respondents. (ii) However, since the private respondents were declared as owner of the premises and such decree was upheld upto this Court in second appeal they could not be restored possession. (iii) The subject property was a vacant land and it was all along under the possession of the private respondents. They approached Police authorities for fencing the said land in question. They approached for Police help to avoid unnecessary trouble anticipated from the appellants. (iv) Since the private respondents were declared owner of the property in question, they were entitled to fence their own property which could not be lawfully obstructed and/or resisted by the appellants. (v) But for the mistake on the part of the draftsman it was erroneously contended in the writ petition that the private respondents were dispossessed by the appellants in September, 2005 which was in fact not correct. (vi) The learned Single Judge considering the fact that Police cost was deposited as per the direction of the Police authorities, directed posting of Police picket. (vi) The private respondents were armed with a decree from a competent civil Court and that too affirmed upto the second appellate stage. Hence, they were entitled to protect their own property with Police help and no illegality was committed by the learned Single Judge directing so. (11) Mr. Bandyopahdyay also relied upon the decision in the Case of P. R. Murlidharan and Ors. (Supra) cited by Mr. De. Mr. Bandyopadhyay heavily relied on paragraph 17 of the said decision which is quoted below :-"A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a Court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the Police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil Court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. " (12) Mr. M. M.Das, learned Senior Counsel appearing for the Police authorities, on instruction fairly admitted that the appellants were dispossessed by the private respondents in presence of the Police authorities. The Police had to render necessary help under the threat of contempt. Mr. Das referred to the letter of the Advocate dated September 28, 2005 appearing at pages 80 to 82 of the Paper Book wherein the learned Advocate for the respondents categorically contended that the appellants were in forcible and unauthorised possession. He requested the District Magistrate to take appropriate action against such illegal action. Mr. Das also referred to page 102 of the Paper Book wherein the Police authorities by letter dated February 16, 2006 categorically asked the private respondents to deposit Police cost for recovery of possession. Relying on the said document Mr. Das contended that admittedly the appellants had been in possession before they were dispossessed on April 12, 2008 when in presence of the Police authorities the respondent took forcible possession. Mr. Das in effect supported the appellants. (13) We have considered the rival contentions of the parties. We have also considered the Apex Court decisions cited at the bar. The Apex Court times and again cautioned the High Courts against abusive proceedings in the guise of Police inaction where civil disputes were involved. Mr. Bandyopadhyay tried to distinguish the Apex Court decision in the case of P. R. Muralidharan and Ors. We have also considered the Apex Court decisions cited at the bar. The Apex Court times and again cautioned the High Courts against abusive proceedings in the guise of Police inaction where civil disputes were involved. Mr. Bandyopadhyay tried to distinguish the Apex Court decision in the case of P. R. Muralidharan and Ors. (Supra) by contending that since they were armed with a decree of competent civil Court and that too affirmed upto the second appellate stage he was entitled to have Police help to protect his property. In paragraph 17 of the said decision quoted supra the Apex Court observed that when a party flouts a decree or an order of injunction passed in a civil proceeding the affected party is entitled to ask for Police help. At the same time the Apex Court observed that when status or right remains to be adjudicated upon and when such an adjudication can only be done in civil Court, proceeding under Article 226 of the Constitution was an abuse of process. His Lordship observed, "the temptation to grant relief in cases of this nature should be resisted by the High Court". The Apex Court further observed, "the wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations." (14) Considering the case in hand if we look back we would find that the private respondents were armed with a decree of a competent civil Court ultimately affirmed upto the second appellate stage. The appellants thus were not entitled to flout the said decree. If we examine the decree we would find that the civil Court declared the private respondents as owner of the property in question. The civil Court also declared that the private respondents were licensee in respect of the portion of the said premises in question. Whether the Civil Court decree could be executed by recovery of possession, is a question to be decided by the Civil Court at the execution stage. We are amazed to find how the Police authorities could ask the respondents to deposit Police cost for recovery of possession when there was no order either from any Civil Court or from any Criminal Court or by this Court under Article 226 of the Constitution. The respondents tried to do something which they possibly could not do before a Civil Court. The respondents tried to do something which they possibly could not do before a Civil Court. The lacuna, if any, in the decree, in our view, cannot be cured in the guise of making a grievance against Police inaction and then approach the High Court for providing necessary relief. (15) Mr. Bandyopadhyay desperately tried to put the burden on the Advocate with regard to the averments made in the petition. Even if we ignore such averments we would find that the private respondents were consistent in contending that they were dispossessed in September, 2005 and they wanted police help for recovery of such possession. They understood that the decree obtained by them would give them liberty to dispossess the appellants as they were in wrongful possession in view of the said decree. (16) A party may be in wrongful possession. Such possession may be illegal. However, such illegality must be undone only through due process of law. We unhesitatingly observe that present proceeding in the circumstances was not at all proper. Even if we give full credence to what Mr. Bandyopadhyay contended before us we would find that such alleged mistake occurred in several paragraphs of the said writ petition. On a combined reading of the writ petition and the correspondence exchanged between the parties we are unable to accept such contention to the effect that it was a sheer mistake in contending that they had been dispossessed in September, 2005. (17) With deepest regard we have for His Lordship and with all humility may we say, the learned Judge possibly missed out the fact that the appellants" were the necessary parties and such order should not be passed in their absence. (18) The appeal thus succeeds and is allowed. The order under appeal passed by the learned Single Judge dated July 7, 2006 in W.P. No. 4045(W) of 2006 is set aside. (19) We would have directed status quo ante by dispossessing private respondents and putting the appellants back in possession. However, considering the civil Court decree and considering the fact that the same attained finality at the second appellate stage without any challenge to the same before the Apex Court, we direct the District Magistrate, Burdwan to take possession of the entire plot No. 3275 in Mousa-Kota, District-Burdwan being the subject property in question. However, considering the civil Court decree and considering the fact that the same attained finality at the second appellate stage without any challenge to the same before the Apex Court, we direct the District Magistrate, Burdwan to take possession of the entire plot No. 3275 in Mousa-Kota, District-Burdwan being the subject property in question. The District Magistrate, Burdwan is also directed to nominate an officer not below the rank of Sub-Divisional Officer to retain possession on his behalf and hold the same till the parties could resolve their dispute before a competent civil Court. (20) The private individuals are given liberty to approach appropriate civil Court for appropriate relief in this regard. (21) Before parting with we express our strong displeasure with regard to omission on the part of the private respondents in skipping out one relevant sentence from the operative part of the decree referred to above. Mr. Bandyopadhyay tried to contend that it was an accidental slip and should be condoned by this Court in view of the fact that the copy of the original decree had already been annexed to the writ petition. We are unable to accept such explanation. The purpose of quoting the operative part of the decree in the body of the petition was to attract the attention of the learned Judge. Even if we accept the same as a mistake, we would find that the same was repeated by the private respondents even at the appellate stage as would appear from the pages 145 and 225 of the paper book. (22) The appeal is disposed of accordingly. (23) The private respondents being respondent Nos. 1 to 5 are jointly and severely directed to pay cost of this appeal assessed at Rs. 5000/-to be paid to the appellants within a week from date. In default, the appellants would be entitled to execute this order as a decree of this Court.