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2010 DIGILAW 924 (PAT)

Damyanti Devi v. Jyoti Puram Sahkari Grih Nirma

2010-04-22

body2010
ORDER Heard the learned counsel for the appellant, learned counsel for the respondent no.1 and the learned counsel for the respondent no.2 at length under Order 41 rule 11 C.P.C. 2. With consent of the parties this appeal is being disposed of at the admission stage itself. 3. The appellant, Damyanti Devi Mahila College, Khajpura, has filed this appeal against the order dated 18.8.2009 passed by the Subordinate Judge -1st, Patna, in Title Suit No.381 of 2008 whereby the court below has rejected the injunction petition filed by the plaintiff appellant. 4. The plaintiff appellant filed the aforesaid Title Suit No.381 of 2008 praying therein that on adjudication of the facts the title of the plaintiff over the suit land be declared and possession be confirmed and in case of dispossession a decree for recovery of possession may be granted. The plaintiff appellant also prayed for permanent injunction restraining the defendants from interfering with the possession of the plaintiff college over the suit land. 5. During the pendency of the suit the appellant also filed a separate application under Order 39 rule 1 and 2 C.P.C. praying for injunction. A counter affidavit has been filed on behalf of the respondents. After hearing the parties the learned court below, came to the conclusion that the plaintiff has got no prima facie case and balance of convenience is not in favour of the plaintiff and, accordingly, rejected the injunction application. 6. The learned counsel for the appellant submitted that the learned court below has not considered the fact that the three sale deeds are of the year 1988 and the sale deeds have not yet been cancelled by competent authority. The respondents have not taken any steps for getting the said sale deeds set aside and till now no suit has been filed for cancellation of the same. According to the learned counsel the sale deeds are legal and valid and the appellant is in possession of the suit land. As such the possession cannot be interfered with. The learned counsel further submitted that unless the three sale deeds are either cancelled or declared as illegal by competent authority no title will pass on the cooperative society and, therefore, the cooperative society cannot execute any development agreement in favour of respondent no.2. As such respondent no.2 has got no right to do any act of development on the suit land. As such respondent no.2 has got no right to do any act of development on the suit land. The learned counsel further submitted that in view of the above facts the appellant has got prima facie case about the title. The learned counsel further submitted that since the plaintiff is in possession, therefore, balance of convenience is also in favour of the plaintiff. According to the learned counsel if the respondents are not restrained from constructing buildings the appellant shall suffer serious loss and irreparable injury because after construction naturally the society will sell the apartments to different persons. On these grounds the learned counsel submitted that the impugned order is liable to be set aside and the defendants-respondents are liable to be restrained from making any construction. 7. On the other hand, the learned counsel for the respondents submitted that the, learned court below has rightly rejected the injunction application on consideration of the entire facts. The learned counsel for the respondent no.1 as well as for the respondent no.2 placed lengthy counter affidavit in support of their contentions. 8. From perusal of the record it appears that the respondent no.1, Jyotipuram Sahkari Grih Nirman Samittee Ltd., Patna, is a Society. The said Society had purchased 65 kathas 10 dhurs and 10 dhurkies land from private land owners of Mauza Khazpura during the period of 1982 to 1984. A plan was prepared for developing a housing colony in Block-C dividing the same into 28 society plots. It further appears from Annexure-R/2 that resolution was arrived at by the Board of Directors for allotment of the said plots to the members of the Society and, accordingly, in the year 1985 the registered sale deeds were executed by Baleshwar Prasad, the then Secretary of the Society. It further appears that in the year 1988 Ramdhyan Prasad styling himself as Secretary transferred those very lands by the registered sale deeds to his wife Damyanti Devi. 9. From perusal of the bye-laws it appears that the power to alienate is on the Board of Directors subject to the decisions of General Body and there is no power to alienate by the Secretary or the President. 10. There was dispute between the purchasers and the Housing Cooperative Society which came up to the Hon'ble High Court. 9. From perusal of the bye-laws it appears that the power to alienate is on the Board of Directors subject to the decisions of General Body and there is no power to alienate by the Secretary or the President. 10. There was dispute between the purchasers and the Housing Cooperative Society which came up to the Hon'ble High Court. The Hon'ble High Court in C.W.J.C. No.4023/95 directed to enquire about the alleged sale deeds regarding the land of Sector-C and the Administrator of the Society enquired the matter and reported vide Annexure-3 to the Memo of Appeal. He came to the conclusion that no body was authorized to sell the land of Sector -C after 9.5.1986 and thereafter he came to the said conclusion that the sale deeds are void transactions which have been executed by Ramdhyan Prasad and others. 11. It further appears from Annexure-1 that the sale deeds are in the name of Damyanti Devi and not in favour of the appellant college. It further appears that although it is stated by the appellant that a sum of Rs.4,75,000/- was paid as consideration amount to the Society but during the special audit of the Accountant General by Team of auditors constituted by the C.J.M., Patna in Gardanigabh P.S. Case No.643/93 it was found that not a single pie was entered in the book of the society for the said period. In view of these facts prima facie it appears that the plaintiff has yet to prove its title. More over, the suit itself is for declaration of title. 12. The learned counsel appearing for the appellant submitted that unless and until a case of irreparable loss or damage is made out by a party to the suit the court should not permit anyone to change the nature of the property. In support of his contention the learned counsel relied upon a decision reported in A.I.R. 2005 S.C. 104 (Maharwal Khewaji Trust Vs. Baldev Dass) and submitted that the respondents cannot be allowed to change nature of the property. From perusal of the decision it appears that in that case the court permitted the respondents to make construction and the Hon'ble Supreme Court found that there was no extra ordinary ground for permitting the respondents to put up construction. Baldev Dass) and submitted that the respondents cannot be allowed to change nature of the property. From perusal of the decision it appears that in that case the court permitted the respondents to make construction and the Hon'ble Supreme Court found that there was no extra ordinary ground for permitting the respondents to put up construction. In the present case at our hand as stated above the learned court below has prima facie found that the title deeds in favour of Damyanti Devi has been executed by her husband alleging that he is Secretary. The Administrator found the sale deeds as void ab initio. Further it appears that during the period of audit no consideration was paid to the Society. Therefore, in my opinion, this decision is not in support of the appellant. 13. The learned counsel further relied upon a decision reported in 2001 (2) P.L.J.R. 268 (Dharam Nath Ojha Vs. Raghunath Ojha) and submitted that it is the duty of the court to preserve the subject matter of litigation by an appropriate order. It may be mentioned here that in the decision cited here above it was a case of partition suit and there was no dispute regarding title. In the present case at our hand the title of the appellant is under serious challenge and prima facie finding is against her. 14. In view of my above consideration prima facie it appears to me that plaintiff appellant has got no prima facie case for grant of injunction against the Society. 15. From the photographs annexed with the counter affidavit it appears that the construction is almost at the fag end and moreover, construction is not small construction. From the photographs it appears that more than crores of rupees has been invested in the construction and, many apartments have been constructed. Therefore, if injunction is granted naturally the respondents shall suffer serious loss and irreparable injury. On the other hand, if injunction is not granted the plaintiff will not suffer any loss whatsoever. Further from the construction as would be evident from the photographs it appears that the plaintiff is not in possession of the suit land. I, therefore, find that the balance of convenience is not in favour of the plaintiff but it lies in favour of the defendants respondents. Further from the construction as would be evident from the photographs it appears that the plaintiff is not in possession of the suit land. I, therefore, find that the balance of convenience is not in favour of the plaintiff but it lies in favour of the defendants respondents. I, therefore, find that the plaintiff will not suffer any loss what to speak of serious loss and irreparable injury. Therefore, the findings of the court below on these points is hereby confirmed. 16. In the result, I find no merit in this Misc. Appeal and, accordingly, this Misc. Appeal is dismissed.