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2011 DIGILAW 762 (CAL)

Brij Laxmi Foundation v. Krishna Chandra Sapui

2011-06-10

SYAMAL KANTI CHAKRABARTI

body2011
Judgment :- Syamal Kanti Chakrabarti, J. In the instant application under Article 227 of the Constitution order dated 16th February, 2009 passed in Misc. Appeal No. 463 of 2008 arising out of Title Suit No. 468 of 2005 now pending before the learned First Civil Judge (Senior Division), 1st Court, Alipore has been assailed. 2. By such order the learned First civil Judge (Senior Division), Alipore disposed of a Misc. Appeal being no. 463 of 2008 affirming the order dated 28.08.2008 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No. 468 of 2005. By the said order the learned Trial Court directed both parties to maintain status quo in respect of the suit property till disposal of the suit. 3. In fact, the plaintiff filed the aforesaid Title Suit No. 468 of 2005 praying for a decree for declaration, injunction and recovery of possession. In the plaint it has been claimed that the plaintiffs and other family members got total 367 bighas 14 cottahs of land including the disputed property from time to time from 1888 onwards from Beni Madhab Ghosh, Joy Krishna Mondal and Naba Krishna Pal and many others by virtue of Patta being no. 51/18888 and 264/1897, deed of exchange being 2474 of 1915, sale deeds being 2476, 2478, 2480 and 2482 etc of 1915 and also by other means comprised in Touzi No. 169/1, 169/2, 129, 159, 169, 206 and 210 etc Mouza Barokhola. It is further case of the plaintiff that subsequently the members of the family lost their unity and due to their non-cooperation name of only one of the three owners namely, Naba Krishna Pal was erroneously recorded in the relevant records of rights in respect of some plots of land at Barokhola mouza. In 1956 Bishnu Pada Sapui and Jatindra Nath Sapui filed a partition suit being Title Suit No. 43 of 1956 which was subsequently renumbered as Title Suit No. 121 of 1962. In the said suit one Receiver was appointed to look after the entire properties including the suit property. An application was filed for removal of such Receiver and taking advantage of such unusual circumstances the defendant took possession of the suit property and started construction of building thereon. The plaintiffs then raised objection being co-sharer but the Receiver Mr. Sankar Sen remained silent. An application was filed for removal of such Receiver and taking advantage of such unusual circumstances the defendant took possession of the suit property and started construction of building thereon. The plaintiffs then raised objection being co-sharer but the Receiver Mr. Sankar Sen remained silent. So some of the parties moved the Hon’ble Court and the Hon’ble Court was pleased to pass an order of civil imprisonment against the Receiver. Thereafter, the defendant again tried to change the nature and character of the suit property though the partition suit was pending and an application under Section 144 Cr.P.C. was also filed against the defendant in which the learned Executive Magistrate was pleased to pass restraint order against the defendant. 4. On 24.10.2005 the plaintiffs again noticed that the defendants was raising construction in a portion of the suit property and they tried to resist them. Accordingly they filed the present suit being Title Suit No. 468 of 2005 seeking reliefs already stated above. The defendant has already appeared in the suit and filed written statement. They have claimed that they got the suit property by virtue of a deed of lease dated 16.09.1998 and got delivery of possession and mutated their name with the Calcutta Municipal Corporation authorities. Their further claim is that in the meantime they have under taken construction work in the disputed property which is in progress without any knowledge of such pending litigation. On perusal of such fact the plaintiff filed a petition for temporary injunction in which after hearing both the parties the learned Trial Court directed them to maintain status quo by order dated 28.08.2008. Being aggrieved by and dissatisfied with such order the plaintiff preferred the aforesaid Misc. Appeal which has also been dismissed affirming the order of the learned Trial Court. The said order of Civil Judge (Senior Division), 1st Court, Alipore has now been assailed. 5. The learned lawyer for the petitioner has claimed that both the learned Courts below have issued restraint order against the bona fide owner and possessor of the property without proper application of mind. In granting temporary injunction the Court should consider the balance of convenience and inconvenience, the chance of ultimate success in the suit and the prima facie material appearing in favour of the plaintiff. In granting temporary injunction the Court should consider the balance of convenience and inconvenience, the chance of ultimate success in the suit and the prima facie material appearing in favour of the plaintiff. In the instant case without considering all these aspects the learned Courts below have passed the restraint order holding progress of construction of a hospital in the disputed property for which purpose the same was leased out by the state. It will also be evident from the conduct of the present plaintiff/respondents that the State of West Bengal has all along been relegated to the background and the partition suit was filed in 1996 without impleading the State of West Bengal as a necessary party. Immediately when the matter went up to the Hon’ble Apex Court the state’s prayer for addition of party was allowed and this Court also allowed the state to be added as a necessary party and they have also filed affidavit-in-opposition supporting the case of the defendant/petitioner. 6. In this connection the direction given by the Hon’ble Apex Court in IA No. 2 of 2010 is quoted below: “ We dispose of the appeal and the interlocutory application by modifying the order passed by the learned Single Judge on 15th March, 2010, impugned in the appeal, with a direction that the mater be disposed of as early as possible, but preferably within three months from the date of communication of this order. We once again reiterate that this order is being passed having regard to the facts involved and the nature of the construction which is being raised on the land in question.” 7. I have carefully considered the submissions made by the learned advocates for both the parties, the affidavits and the averments made by the parties and the aforesaid order of the Hon’ble Apex Court. 8. I have carefully considered the submissions made by the learned advocates for both the parties, the affidavits and the averments made by the parties and the aforesaid order of the Hon’ble Apex Court. 8. While considering this interlocutory matter I have carefully noted the observation of the Hon’ble Apex Court to the effect that Their Lordships have been pleased to pass the order having regard to the facts involved and the nature of the construction which is being raised on the land in question as also the limited scope of the revisional Court to confine itself to the averments made by the parties and that this revisional Court cannot like a suit Court decide the question of validity of any document or decide any question of fact which requires adjudication by the learned Trial Court by giving opportunities to both the parties of hearing and adducing evidence. In his affidavit-in-opposition filed by the plaintiff/respondent/O.P. no. 3 it has been admitted that in 1956 two other co-sharers namely, Bishnu Pada Sapui and Jatindra Narayan Sapui filed a partition suit in T. S. No. 43 of 1956 which is renumbered as Title Suit No. 121 of 1962 which is still pending. The subject matter of the aforesaid suit relates to 367 bighas 14 cottahs of land including the scheduled property. In fact, vesting of the disputed property in the Government and subsequent allotment in favour of the appellant have been challenged but the legality and propriety of such vesting cannot be decided in this revisional application which requires adjudication by the learned Trial Judge. Against such contention the added respondent no. 14, the state of West Bengal has filed a copy of notification no. 16650 L. Ref. 11th November, 1954 published in the Calcutta Gazette dated 11.04.1954 from which it appears that in exercise of the powers conferred by sub-Section 1 of Section 4 of the West Bengal Estates Acquisition Act, 1953 the Governor has been pleased to declare that with effect from the first day of Boisakh of the Bengali Year 1362 all estates and the rights of every intermediary in each such estate situated in the District of 24 Parganas except the areas described in Schedule I of the Calcutta Municipal Act, 1951 as deemed to have been amended under Section 594 of that Act vested in the state free from all encumbrances. The said notification has not been challenged by the plaintiff in the original title suit and the State of West Bengal has not been impleaded as a necessary party to the aforesaid suit. 9. It also appears from the affidavit-in-opposition filed by the respondent no. 14 that the controversy relates to plot no. 129 in part measuring 0.70 acres under Mouza Barokhola (JL No. 21) P.S. Purba-Jadavpur of District 24 Parganas. It is further contended by the state that in Title Suit No. 462 of 2005 a prayer has been made (prayer no. 3) for a decree for recovery of possession in respect of the suit property from the defendant. It also appears that in the earlier title suit no. 46 of 1956 renumbered as 129 of 1962 the state has not been impleaded as a party and in their absence Receiver was appointed by the learned Court below who took possession of the property only for the purpose of its protection and care. Thus admittedly petitioners are out of possession of the suit property and recovery of the same depends solely upon their success in the suit. So question of retention of possession of the suit property is not relevant for consideration of interlocutory application for injunction and parties are at liberty to raise such point at the time of trial as regards effect of appointment of such Receiver in earlier suit. 10. It also transpires that the plaintiff in Title Suit No. 43 of 1956 has claimed that in the CS record of rights the name of one of the co-sharers namely, Naba Krishna Pal was erroneously recorded and no prayer has been made for correction of such records either during CS or RS operation. 11. After enforcement of the West Bengal Estates Acquisition Act, 1953 the disputed property has been rightly vested in the estate upon notification under Section 4 and implementation of Section 5 of the Act reserving right of retention of land under Section 6 of the Act by filing option in Form B. Unfortunately in the instant case most of the co-sharers of Title Suit No. 43 of 1956 including the plaintiff of Title Suit No. 121 of 1962 have not exercised such option and in fact unless that suit is decided their rights cannot be adjudicated. Because in the relevant record of rights the names of their predecessors did not appear. Because in the relevant record of rights the names of their predecessors did not appear. It also appears from the averment of the added respondent no. 14 that the disputed plot no. 129 was vested in the state in a proceeding no. 12 of 1986 under Section 14T(3) of the West Bengal Land Reforms Act in the name of Bijoy Krishna Pal, son of Naba Krishna Pal, the recorded Raiyat or intermediary. 12. In determining the prima facie case the learned Courts below have not taken note of these aspects and the balance of conveniences and inconveniences of the parties in possession and out of possession of the suit property. It is also averred that the disputed property measuring 0.70 acres of the vested land in plot no. 129 has been settled in favour of M/s. Brij Laxmi Todi Foundation, i.e., the petitioner herein, for setting up a charitable diagnostic centre and a school and admittedly they are in possession of the same and undertaken partial construction thereon. 13. I have already pointed out that the plaintiffs/opposite parties have raised the question of grant of lease, vesting etc. which relates to disputed questions of fact and law which cannot be decided by the revisional Court. But at the same time so far as balance of convenience and inconvenience is concerned, it appears that the plaintiffs are not in possession of the disputed property for more than seven years and thereafter they filed the aforesaid suits and after vesting of the land in question they are neither recorded owner of the property nor exercised any option for retention of the property nor did they file any B Form showing their desire to retain the disputed property. Unless the older partition suit is decided, at this stage those points also cannot be decided. But the fact remains that the plaintiffs are not in a position to make out a prima facie case in their favour in respect of their title and possession over the suit property. On the contrary the appellant/defendant in the instant case have been able to place on record valid documents of vesting of the land as well as valid deed of transfer by which they acquired prima facie title over the suit property. On the contrary the appellant/defendant in the instant case have been able to place on record valid documents of vesting of the land as well as valid deed of transfer by which they acquired prima facie title over the suit property. It is also an admitted fact of the appellants that they have already undertaken the construction for public interest for which the land was allotted to them. Therefore, the Court should not pass any restraint order at this stage since the balance of convenience and inconvenience is not in favour of the opposite party/plaintiffs but the same is in favour of the defendant/appellant. 14. Learned senior counsel representing the appellants has also submitted that subject to the result of the suit the appellant should be allowed to complete the construction work for public interest since they have a good prima facie case in their favour and they have fair chance of success in the suit and they are also ready to give written undertaking to the effect that in the event of their failure to substantiate their claim in course of trial and final adjudication of the matter, the appellant will remove the construction at their own cost and give up vacant possession of the suit property in favour of the State if so directed by the Court of competent jurisdiction. 15. I have also perused the principles laid down in AIR 1997 SC 173 , 2011(!) WBLR (Cal) 863, 67 CWN page 12, AIR 1977 SC 2304 etc. cited by the learned lawyer for the opposite party/plaintiffs in support of their contention that during possession of the property by the Receiver, duly appointed by the Court, the State cannot take possession of the same by way of vesting and allot the same in favour of any third party. I hold that since this is a pure question of fact the same cannot be decided at present and as such those principles are not applicable in the facts and circumstances of this present case. In the result I hold that there is sufficient merit in this application. 16. I hold that since this is a pure question of fact the same cannot be decided at present and as such those principles are not applicable in the facts and circumstances of this present case. In the result I hold that there is sufficient merit in this application. 16. In view of the above circumstances I hold that the order of status quo passed by the learned Courts below and affirmed by the First Revisional Court, is the outcome of non-application of mind and is not sustainable in law in as much as there is no prima facie case in favour of the plaintiff/opposite parties who have claimed equity not in clean hands. 17. Therefore, I allow the instant prayer and set aside the impugned order of the learned First Revisional Court as well as the order of the learned Trial Court and the interim order of status quo stands vacated. The learned Trial Court is directed to dispose of the Title Suit No. 468 of 2005 within three months from the date of communication of this order by fixing day to day hearing of the matter without granting unnecessary adjournment to the parties. In the meantime the appellant/defendant is at liberty to undertake further construction at the suit premises at their own risk and responsibility on the express condition that for this purpose they will have to swear and file an affidavit before the learned Trial Court to the effect that they will remove all such construction and give up vacant possession of the suit property in favour of the State of West Bengal from whom they got the property by lease if the suit is decreed against them, within such time as may be directed by the Court of competent jurisdiction. 18. It is made clear that observations made in deciding merit of this application shall have no bearing upon the learned Trial Court who shall decide merit of the suit on the basis of his own appreciation of evidence and according to law. 19. I make no order as to costs. 20. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.