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2010 DIGILAW 181 (PAT)

Dr. Rita Sharma v. Radheshyam Singh

2010-02-15

RAMESH KUMAR DATTA

body2010
JUDGEMENT 1. The interlocutory application has been filed by the appellant for restoration of possession over the suit property and mandatory injunction in their favour. 2. The appellants are the plaintiffs in the title suit and they have filed the Miscellaneous Appeal against the order dated 25.11.2008 passed by the 2nd Subordinate Judge, Bhojpur, Ara in Title Suit No. 369 of 2006 rejecting the injunction petition. 3. This Court by order dated 17.4.2009 admitted the appeal for hearing and issued notice to the respondents. It was also directed that the respondents are restrained from taking forcible possession and/or dispossessing the plaintiffs-appellants till the final disposal of the appeal. The present interlocutory application had already been filed on 24.2.2009 but since the appellants had not appeared on 17.4.2009 before this Court, it could not be brought to the notice of this Court that prior to the filing of the Miscellaneous Appeal on 22.12.2008 the purchaser allegedly alongwith local police officials and hundreds of persons went on the spot and dispossessed the plaintiffs-appellants and their family members by force on 20.12.2008 and took away several valuable articles including jewellery and garments of the family members of the plaintiffs. The matter has now come up for consideration by this Court. 4. Learned counsel for the appellants submits that the appeal is a continuation of the original lis and thus this Court ought to hear the matter of restoration of possession of the plaintiffs-appellants over the suit property which has taken place just prior to the filing of the present appeal with the sole object of defeating the right of the plaintiffs-appellants from challenging the order refusing injunction passed by the court below; if the present matter is not considered tnen the present appeal itself would be rendered infructuous. 5. It is further submitted by learned counsel that even in the impugned order of rejection the submission on behalf of the respondents has been noted that the plaintiffs are trespassers and they have got no right against the real owner and further the said fact is also supported by the report of the Pleader Commissioner that the plaintiff no. 1 had forcibly constructed the house six months prior to the report dated 4.1.2007. 6. In support of his stand learned counsel relies upon a Division Bench decision of this Court in the case of Smt. Dharm Shila Devi & Ors. 1 had forcibly constructed the house six months prior to the report dated 4.1.2007. 6. In support of his stand learned counsel relies upon a Division Bench decision of this Court in the case of Smt. Dharm Shila Devi & Ors. V/s. Ramesh Chandra Tewari & Ors.: 2009(4) PLJR 367 relying upon paras 6 and 8 of the same which are in the following terms: "6. Appeal is a continuation of the original lis. Admittedly, the devolution took place after institution of the suit. It is true that after the decree was passed, devolution took place, when no lis was pending, but subsequently an appeal was preferred and the same was perfected by obtaining an order condoning the delay in preferring the appeal. In law the lis in between the decree and the order condoning the delay in preferring the appeal remained in abeyance. In such view of the matter, it must be deemed that the devolution did take place during the pendency of the lis. 8. The fact remains that at the time when the devolution, by way of purchase, took place, in point of fact, no litigation was pending in any court and accordingly, there was no court which could be approached for the purpose of obtaining permission to transfer. 7. Learned counsel for the appearing respondent nos. 1 to 4, on the other hand, submits that the present interlocutory application is not maintainable. It is contended by learned counsel that the trial court in the order under appeal has not gone into the matter as to whether the plaintiffs were or were not in possession but has merely referred to certain statements made in the written statement as also the report of the Pleader Commissioner and thus the said issue ought not to be considered at the first instance by this Court. It is also urged by learned counsel that the decision in the case of Smt. Dharm Shila Devi (supra) is not at all applicable in the present case as there the matter arose in an LPA against a judgment and order passed in a First Appeal after the Trial Court had decreed the suit whereas the present appeal has arisen out of an interlocutory order refusing grant of injunction. Thus, the principle of an appeal being a continuation of the original lis is only applicable to an appeal against the main decree and not in respect of limited orders like an order refusing injunction in an appeal against which the entire lis is not before this Court. 8. It is further submitted by learned counsel that the appeal has already been admitted and after the admission of the appeal the present matter, which is entirely a separate matter unconnected with the impugned order challenged in the appeal, has been filed and thus the same ought not to be considered in an appeal with respect to rejection of an order of injunction. 9. Learned counsel further alleges that the plaintiff-appellants are only interested in delaying the matter and they are not appearing in the suit and the matter is being dragged and thus, they are not entitled to any interim relief. 10. On a consideration of the rival submissions, this Court finds sufficient force in the objection raised by learned counsel for the respondents. In the present matter the alleged dispossession has taken place prior to the filing of the appeal and for the same the plaintiffs-appellants have a specific remedy before the trial court for a proper decision on the said issue; it may even require evidence to be led by the parties and thus it is not a matter which ought to be straightaway considered at the stage of appeal that too when this Court is only concerned with an appeal against the order rejecting an injunction and the entire matter is not before this Court as a First Appeal. Thus, no benefit can be derived by the appellants from the decision of this Court in Smt. Dharm Shila Devis case (supra). 11. So far as the allegations regarding the dilatory tactics of the plaintiffs is concerned, there is nothing on the record with respect to the same and thus this Court does not express any opinion on the said point. However, in the facts and circumstances of the case, this Court is of the view that it would not be proper to consider the reliefs prayed for in the present interlocutory application. 12. I.A. No. 1235/2009 is accordingly dismissed. 13. However, in the facts and circumstances of the case, this Court is of the view that it would not be proper to consider the reliefs prayed for in the present interlocutory application. 12. I.A. No. 1235/2009 is accordingly dismissed. 13. It would however, be open to the appellants to approach the trial court for necessary relief in the matter which shall consider the same in accordance with law on its own merit without being prejudiced by the rejection of the present interlocutory application. In case, a petition is filed by the plaintiff-appellants in the court below for restoration of possession, the same shall be dealt with expeditiously and disposed of within a period of four months of the filing of the same.