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2010 DIGILAW 797 (CAL)

Suchangshu Sekhar Mondal v. Archna Maity

2010-07-13

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: 1) The Challenge in this revision application under Article 227 of the Constitution of India is to the order dated 29.4.2006 passed by the learned Additional District and Session Judge, Fast Tract Court, Haldia, in Misc Case Appeal No. 256 of 2004 reversing the order dated 3.6.2002 passed by the learned Civil Judge, Junior Division, Haldia, in Title Suit No. 186 of 2001. 2) The facts leading to this revision application succinctly, are, that : a) the petitioner/plaintiff filed the suit in the Court of learned Civil Judge, Junior Division, Haldia for declaration of his rights over a pathway fully described in the scheduled of property appended to the plaint and a petition for temporary injunction against the opposite party/defendants ; b) that a land measuring 63 dec. in D.S. plot no. 538 was originally belonged to one Kunja Bihari Sasmal and Bhusan Sasmal by way of partition. Kunja Bihari Sasmal was allotted west and northern portion of the plot which was re-numbered as plot no. 538/1499 in R.S.R.O.R. Bhusan was allotted the south and eastern portion of the plot. Kishori Mallick, the pro-forma defendant no. 3, purchased the entire plot being no. 538 of 1499 and 3 ¼ th dec. of land in plot no. 538. He gifted 4 dec. (kha/1 scheduled land) of land to the defendant no. 1. The petitioner/plaintiff purchased “Kha” scheduled land from Kishori Mallick, the pro-forma defendant no. 3 together with the right to use the pathway in dispute. Since, the principal defendant/opposite party obstructed him to use the pathway in dispute, the petitioner filed the suit; c) that the plaintiff/petitioner filed an application under Order 39 Rule 1 & 2 of the Civil Procedure Code and prayed for temporary injunction. The prayer was opposed by the principal defendants, (opposite parties herein) who filed a written objection. The learned Civil Judge, Junior Division, Haldia directed both the parties to maintain status quo in respect of the Ka scheduled property till disposal of the suit; d) that the petitioner/plaintiff filed another application subsequent to passing of the status quo order, praying for temporary mandatory injunction order against the opposite party on the ground that they fixed one iron gate on the disputed pathway violating the status quo order. He prayed for removal of the gate. He prayed for removal of the gate. In the mean time, a local inspection of the suit property was held in presence of both the parties and report of inspection was filed in Court. That application was opposed by the opposite parties and ultimately, the learned Civil Judge, Junior Division, Haldia allowed that prayer for temporary mandatory injunction on 3.6.2002 relying solely on the report of the local inspection directing the opposite party to remove the iron gate; e) that the opposite parties filed a Misc. Appeal against that order which was registered as Misc. Appeal No. 256 of 2004 in the Court of learned Additional District Judge, (F.T.C.), Haldia. That Misc. Appeal was disposed of on contest on 29.4.2006 whereby the order of temporary mandatory injunction dated 3.6.2002 passed by the learned Civil Judge, Junior Division was reversed with directions on the learned Civil Judge, Junior Division, Haldia to appoint a Survey Knowing Pleader Commissioner for holding local inspection on the points furnished in the petition filed by the appellant in Misc. Appeal, to issue a writ in favour of the learned Commissioner directing him to hold local inspection at the cost of present opposite parties and thereafter to take up the matter along with the report of learned Survey Knowing Pleader Commissioner and to reconsider and decide the matter afresh after giving both the parties opportunity of being heard according to law. Said order in Misc. appeal no. 256 of 2004 dated 29.4.2006 has been challenged in this revision application. 3) Sri Asish Bagchi, learned Advocate for the petitioner appeared on behalf of the petitioner/plaintiff contended that the learned Appellate Court failed to appreciate the fact of the case in its proper perception and failed to consider that the iron gate was fixed by the opposite party after passing of status quo order which was established from the report of the learned Commissioner who held local inspection. He contended further that the learned Civil Judge, Junior Division was justified to pass the order of mandatory injunction in the background of the compelling and pressing circumstances. There was no necessity to direct the learned Civil Judge, Junior Division for holding further local inspection by Survey passed Commissioner because the Trial Court has power to pass such an order to restore status quo. 4) The proposition of the law advanced by Mr. There was no necessity to direct the learned Civil Judge, Junior Division for holding further local inspection by Survey passed Commissioner because the Trial Court has power to pass such an order to restore status quo. 4) The proposition of the law advanced by Mr. Bagchi to the effect that the Trial Court has power, in appropriate case, to pass an order of mandatory injunction to restore status quo can not be disputed. Whether on the facts and circumstances of the case in hand, such a proposition can be applied or not, is the question to be decided. 5) The temporary injunction order inform of status quo dated 10.12.2001, the order allowing mandatory injunction dated 3.6.2002 passed by the learned Civil Judge, Junior Division and the order under challenge dated 29.4.2006 passed by the learned Additional District Judge in the Misc. Appeal are placed before this Court. On careful perusal of all the materials, I find that both the parties have admitted the following factual aspects : a) that both of them acquired their right, title and interest in and possession over the original plot no. 538 from pro-forma defendant no. 3 Kishori Mallick ; b) that portion their purchased property in plot no. 538 are situated adjacent to each other; c) that one status quo order in respect of “Ka” scheduled property was passed ; d) that opposite party in the written petition admitted the fact that they fixed one iron gate (but not on the disputed Ka scheduled land ); e) that local inspection was held in respect of the suit property and the learned Commissioner found no iron gate in the suit property ; f) that a miscellaneous case under Order 39 Rule 2A Civil Procedure Code as already been filed for alleged violation of the status quo order which is pending. 6) It is admitted position that the status quo order in respect of “Ka” scheduled property was passed which had binding force on both the parties when the petition for mandatory injunction was disposed of. That order of status quo was not challenged. 6) It is admitted position that the status quo order in respect of “Ka” scheduled property was passed which had binding force on both the parties when the petition for mandatory injunction was disposed of. That order of status quo was not challenged. The opposite parties in their written objection to the petition against mandatory injunction, stated clearly that they fixed one iron gate after passing of the status quo order but not on the “Ka” schedule disputed land because their existed no pathway in the “Ka” scheduled land which was purchased by the petitioner/plaintiff from Kishori Mallick, the pro-forma defendant no. 3. In fact the opposite parties challenged the right of the petitioner to use any such pathway which was not existed. It was their case also that Kishori Mallick did not pass any right, title and interest in favour of the petitioner/plaintiff in respect of any such pathway. The learned Civil Judge, Junior Division while disposing of the petition of temporary injunction on 10.12.2001, found that there was no documentary evidence as to existence of any such pathway claimed by the petitioner/plaintiff. He also observed that there was no mentioning of any such pathway in the deed whereby the petitioner/plaintiff purchased the “Kha” scheduled property from the pro-forma defendant no. 3. He, in fact, was not sure about the existence any such pathway. The report of local inspection which was held before passing of status quo order, however, indicated clearly that there was no such iron gate in the “Ka” scheduled land. But in their written objection to the prayer for mandatory injunction, the opposite parties admitted that they fixed one iron gate to their boundary wall. The learned Civil Judge, Junior Division, basing on that admission on the part of the opposite parties and relying entirely on the report of local inspection, came to a conclusion that the said gate was fixed inside the “Ka” scheduled land and thereby the opposite parties violated the order of status quo. So, he allowed the prayer for mandatory injunction and directed the opposite parties to remove the gate. 7) In the Misc. Appeal the learned Appellate Court did not accept the manner in which the learned Civil Judge came to such a conclusion. The learned Appellate Court had reasons enough to do so. Firstly, the dispute was over “Ka” scheduled property only. 7) In the Misc. Appeal the learned Appellate Court did not accept the manner in which the learned Civil Judge came to such a conclusion. The learned Appellate Court had reasons enough to do so. Firstly, the dispute was over “Ka” scheduled property only. There was no whisper in the sale deed of the petitioner/plaintiff about existence of the pathway itself. The crux of the entire dispute was over existence of such pathway in the “Ka” scheduled land. Secondly, the learned Civil Judge, himself was confused rather not convinced at the time of passing the status quo order about existence of any such pathway in the “Ka” scheduled land and right of the petitioner/plaintiff to use such a pathway. Thirdly, no inspection, whatsoever, was held after passing of status quo order to ascertain the fact that the said iron gate which was admittedly fixed by the opposite party was actually fixed in the “Ka” scheduled land or not. The opposite party denied that the fact flatly in their written objection and pointed out clearly that the said gate was fixed by them to their boundary wall surrounding their purchased land but not in the “Ka” scheduled land as claimed by the petitioner/plaintiff. 8) The learned Appellate Court left the matter open and issued directions on the learned Civil Judge to reconsider and decide the matter afresh after getting an inspection of the disputed property. 9) The matter, as it appears to me, is entirely related to factual aspects put forth by both the parties. Learned Appellate Court being fact findings Court, came to a conclusion that whether the alleged gate was installed in disputed “Ka” scheduled land or not was to be ascertained first of all and that could only be done by holding another inspection in respect of the suit property by a Survey passed Commissioner. 10) Having considered the entire matter, I am of opinion that there in no reason for this Court to upset the pure findings of fact by exercising its revisional power under Article 227 of the Constitution of India. Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct error of jurisdiction and the like and not to upset your findings of facts which falls in the domain of an Appellate Court only. Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct error of jurisdiction and the like and not to upset your findings of facts which falls in the domain of an Appellate Court only. The learned Appellate Court, I reiterate, being a facts finding Court had the scope to assess the facts of the entire matters. Upon consideration of the entire matter, the learned Appellate Court found it wise and proper to get another inspection on the suit property done so as to ascertain the existence of the pathway itself. In the facts above I am of the opinion that the order passed by the learned Appellate Court is not required to be interfered in this revision application. 11) Accordingly the revision application, thus, fails and is disposed of. No order as to cost is passed. The learned Trial Court is directed to take up the matter as expeditiously as possible according to the directions of the learned Appellate Court.