Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 645 (JHR)

State of Jharkhand v. Shambhu Nath Prasad

2010-05-28

RAKESH RANJAN PRASAD, SUSHIL HARKAULI

body2010
ORDER : 1. The State Government and its officers, who were the appellants have already withdrawn this Letters Patent Appeal. Therefore the State Government has no longer any locus standi in the matter. 2. However, we find that by an interim order dated 24.11.2009 containing detailed reasons was passed in this appeal on an intervention application of one Mathura Prasad (being Interlocutory Application No. 3479 of 2009). According to that interim order prima facie finding was recorded that the said intervener was in possession of a part of the premises in question, yet all orders had been obtained by the respondent No. 1 of this appeal behind the back of the said intervener, and pursuant to such ex-parte orders the said intervener Mathura Prasad had been evicted on 20.11.2009. It is recorded in the interim order dated 24.11.2009 that the said Mathura Prasad had approached this Court on 18.11.2009, that is two days before his eviction seeking protection of his possession, but the same could not be obtained by Mathura Prasad as this Court was not able to hear him in respect of his intervention application prior to his eviction. 3. Moreover the further findings are that, Annexure B to the intervener's other I.A. No. 3518 of 2009 was a possession certificate. It indicated that Mathura Prasad had been evicted alleging him to be an unauthorized occupant of part of the premises. The signatures of Mathura Prasad were found on the said possession certificate. These signatures were admitted by the respondents of the appeal. No other person was mentioned in the said possession certificate, who could possibly be construed as the alleged unauthorized occupant who was being evicted. 4. Further, the articles found in the premises while evicting the intervenor Mathura Prasad were house-hold goods of domestic use, and were not office items, and therefore prima-facie it was not merely an office which was being evicted for delivering possession to the respondent No. 1 of this appeal. 5. Thus, by order dated 24.11.2009, as an interim measure, possession of part of the premises was directed to be restored to Mathura Prasad, holding that delaying restoration of possession in matters of such high-handedness would amount to putting a premium on such unscrupulousness. 6. 5. Thus, by order dated 24.11.2009, as an interim measure, possession of part of the premises was directed to be restored to Mathura Prasad, holding that delaying restoration of possession in matters of such high-handedness would amount to putting a premium on such unscrupulousness. 6. In the same interim order the parties, i.e. Mathura Prasad and the respondent No. 1 of this appeal, were directed to exchange further affidavits for bringing on record any further evidence which they wished to adduce in respect of their respective claims as to whether Mathura Prasad was or was not in possession as alleged by him for purposes of further adjudication of the issue. 7. However, before the issue which was left open by the interim order dated 24.11.2009 could be finally decided, the State Government and its officers, who were appellants, withdrew their appeal. The prayer for withdrawal was allowed by the order dated 21.12.2009 by a Division Bench of this Court and the appeal was dismissed as not pressed. 8. Now the respondent No. 1 of this appeal has moved LA. No. 538 of 2010 praying that as a consequence of dismissal of the appeal all interim orders would stand vacated and therefore a direction should be issued by this Court that the possession restored under the interim order dated 24-11-2009 should be taken back from Mathura Prasad and given back to the respondent No. 1 of this appeal. 9. We have considered the rival submissions and we are of the opinion that although the appeal has been dismissed as between the State-appellants and the respondent No. 1 in the appeal, but because an interim order dated 24.11.2009 have been passed in mandatory terms whereby rights of the parties were altered, therefore, it remains necessary for the Court to finally decide what had been contemplated by the interim order dated 24.11.2009 as between the intervenor Mathura Prasad and the respondents of this appeal, and to bring the dispute between the intervener Mathura Prasad and the first respondent of this appeal to its logical conclusion. 10. The claim of Mathura Prasad is based upon alleged possession in pari performance of an unregistered agreement for sale executed by the attorney of the owner. The name of the attorney is Raj Kumar Tibrewal. 10. The claim of Mathura Prasad is based upon alleged possession in pari performance of an unregistered agreement for sale executed by the attorney of the owner. The name of the attorney is Raj Kumar Tibrewal. The said Raj Kumar Tibrewal is admittedly the Manager of the vendors and he is the signatory to the admitted memo of consideration which is enclosed at page 37 of the writ petition. 11. The respondent No. 1 of this appeal has submitted that the alleged signatures of Raj Kumar Tibrewal on the alleged agreement, photocopy of which was enclosed along with I.A. No. 3479 of 2009 filed by the intervenor Mathura Prasad, are forged and this information has been received by the respondent No. 1 from Raj Kumar Tibrewal himself. 12. It was suggested from the side of the respondent No. 1 that this Court should issue notice to Shri Raj Kumar Tibrewal asking him to confirm or deny his signatures on the agreement. 13. We do not think the matter is as simple as that. The reason is that even assuming that Mr. Raj Kumar Tibrewal denies his signature on the agreement, such statement on affidavit without any further opportunity to the intervenor Mathura Prasad (i) of cross examining Shri Raj Kumar Tibrewal, (ii) of examining hand writing expert, or (iii) examining any other eye witnesses, who might have been present at the time of execution of the alleged agreement by Shri Raj Kumar Tibrewal or at the time when possession was delivered in part performance, would not permit the Writ Court to record a final finding of fact on such a disputed question. Normally, such questions are adjudicated in civil suits. 14. We have further taken into consideration the fact that if at present we direct dispossession of Shri Mathura Prasad from the premises of which he is in possession, it would totally non-suit Shri Mathura Prasad, because the agreement on which Shri Mathura Prasad relies is admittedly unregistered. No suit for specific performance is maintainable on the basis of an unregistered agreement for sale of immovable properties. 15. However, the possession in part performance pursuant of an unregistered agreement for sale, if proved, can be validly taken into consideration by the Court for granting relief. 16. No suit for specific performance is maintainable on the basis of an unregistered agreement for sale of immovable properties. 15. However, the possession in part performance pursuant of an unregistered agreement for sale, if proved, can be validly taken into consideration by the Court for granting relief. 16. In our opinion, two major issues wilt arise if the respondents of this appeal institute a civil suit against Mathura Prasad seeking possession on the strength of title. 17. The first question which will arise is whether the agreement relied upon by Mathura Prasad is a genuine document and the second question will be whether Mathura Prasad was put into possession of the premises in part performance of that agreement. 18. In our opinion, adjudication of these two simple issues in the Civil Suit should not take much time. 19. We, therefore, direct that in case respondent No. 1 of this appeal, namely, Shri Shambhu Nath Prasad institutes a civil suit against Shri Mathura Prasad seeking a decree of possession of the premises, the Civil Court will frame the aforesaid issues and any other issue, if they arise in the light of the written statement filed by Shri Mathura Prasad, and will proceed to dispose of these issues expeditiously without granting undue or unduly long adjournments to any of the parties, and the trial court will try to dispose of the suit within six months of the date of institution of the suit. The learned Counsel for the first respondent has made a statement that the necessary suit will be instituted in the institution Court of the Sub-Judge, Ranchi on or before 15.6.2010. 20. Shri Mathura Prasad, who is represented before us today through counsel, will file a caveat in the said Court within a week to avoid delay in service of summons. If he fails to file the caveat, he will be deemed to have been served with summons of the suit, which will proceed ex-parte against him. For filing his written statement along with the original agreement for sale and any other documentary evidence, Sri Mathura Prasad will have three weeks time from the date a copy of the plaint along with copies of its accompanying documents, if any, are served upon the learned Counsel who files the caveat. 21. For filing his written statement along with the original agreement for sale and any other documentary evidence, Sri Mathura Prasad will have three weeks time from the date a copy of the plaint along with copies of its accompanying documents, if any, are served upon the learned Counsel who files the caveat. 21. Subject to the aforesaid directions and subject to the decision to be given by the Civil Court in the civil suit, this dispute between Shri Shambhu Nath Prasad and Shri Mathura Prasad stands disposed of so far this appeal is concerned. Ordered accordingly.