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2012 DIGILAW 385 (JHR)

Amit Roy v. Anand Sah @ Anand Sao

2012-03-16

POONAM SRIVASTAV

body2012
ORDER 1. Heard Sri Pandey Neeraj Rai, counsel appearing on behalf of the appellants and Sri Delip Jerath, counsel appearing on behalf of the contesting respondents. 2. The order impugned is dated 31st January, 2011 passed by Sub-Judge-IV, Saraikella-Kharsawan, passed under Order XXXIX Rules 1 and 2 r/w Section 151, Civil Procedure Code, whereby application for interim injunction was dismissed in Title Suit No. 35 of 2010. 3. The dispute relates to a piece of land measuring 3.5 acres falling in plot nos. 35, 54, 55, 57 and 58 of Mouza Krishnapur under khata no. 41 of the old survey settlement operation of 1964 under Thana No. 132, Ward No. 9 of Adityapur Notified Area, corresponding to plot nos. 901, 920, 921, 922, 923, 924, 925, 926, 927, 928 and 929 under Khata No. 70 of survey settlement of 1981-82. The land in question originally belonged to one Chhotu Sao, son of Situ Saw. Chhotu Sao died leaving behind his two sons Mukund Sao and Haradhan Sao @ Muchi Ram Sao, who also died leaving behind his son Anand Sao (Respondent No. 1/Defendant No.1). During their lifetime late Mukund Sao and late Haradhan Sao sold 1.22 acres of plot no. 53, 0.32 acres of plot no. 55 and 0.7 acres of plot no. 58, total area being 1.61 acres by a registered sale deed executed on 20.2.1976 to Rajendra Mahato son of Jairam Mahto @ Jainath Mahato of Asangitola, Circle–Gamharia, P.S.-Adityapur for cash consideration. By another sale deed executed on the same date the said vendors sold 1.89 acres in plot nos. 54 and 57 to the same purchaser. Pursuant to the aforesaid transactions said Rajendra Mahato, the purchaser in the aforesaid two sale deeds no. 3918 and 3919, was put into actual physical possession of the property on 20.2.1976 itself. The said sale deeds, however, were impounded at a later date by the Deputy Collector under Section 38 of the Indian Stamp Act, 1899 on account of being defective due to deficit in stamp duty. On removal of the defect those deeds were registered on 19.9.1977 before the Sub-Registrar, Saraikella. Heirs and successors of late Rajendra Mahato, who remained alive, namely, Gandhi Mahato, Mantu Mahato, Smt. Chutan Mahato and Bimal Mahato, who are proforma respondents/defendants (Nos. 2 to 5), sold the said property to the appellant/plaintiff no. 2 Company, acting through its Director–the appellant/plaintiff no. On removal of the defect those deeds were registered on 19.9.1977 before the Sub-Registrar, Saraikella. Heirs and successors of late Rajendra Mahato, who remained alive, namely, Gandhi Mahato, Mantu Mahato, Smt. Chutan Mahato and Bimal Mahato, who are proforma respondents/defendants (Nos. 2 to 5), sold the said property to the appellant/plaintiff no. 2 Company, acting through its Director–the appellant/plaintiff no. 1, by a registered sale deed no. 2074 dated 7.5.2007 for cash consideration. Accordingly, the appellants have come into actual physical possession of the suit property since then. The instant land sold to the appellants is a subject matter of dispute in Title Suit No. 35 of 2010. 4. Learned counsel has brought to my notice that writ petition (W.P.(C) No. 4213 of 2009) was contested between the two parties challenging the order in Mutation Case by preferring W.P.(C) No. 4213 of 2009. During the continuation of the writ petition arising out of mutation case the respondents sold portion of land to a builder, namely, Priyadarshini Homes, the appellants preferred I.A. No. 1839 of 2010 and I.A. No. 2066 of 2010 in the writ petition seeking restraint orders against respondent no. 1, his men and agent from changing typography of the land and also from alienating the land in question. This Court passed an order on 15.7.2010 relegating the matter for adjudication by the Civil Court. The order in the writ petition is reproduced in paragraph 20 of the instant appeal. Sri Pandey Neeraj Rai has laid stress that the interim order passed in the writ petition on 26.5.2010 was allowed to continue for a period of four weeks to enable the appellants to file a civil suit and also prefer an injunction application with clear caution that the order passed by the Revenue authority in mutation case in the writ petition will not prejudice the respective cases of the parties on merits or in the matter of injunction, if prayed. Impugned order passed in the injunction application is annexed alongwith the memo of appeal. 5. Impugned order passed in the injunction application is annexed alongwith the memo of appeal. 5. On perusal of the order it transpires that Sub-Judge-IV, Saraikella Kharsawan, recorded finding that the plaintiffs–appellants have been able to make out prima facie case and also the balance of convenience lies in their favour, but simultaneously rejected the injunction application on the ground that no irreparable loss will be caused in the event the respondents make construction on the disputed land, since it can very well be demolished in the event the suit is decreed. This Court granted an order of "status quo" on 17.2.2011 after exchanging the affidavits. The appeal has come up for admission. As agreed by the respective parties, the appeal is heard finally. 6. Learned counsel appearing on behalf of the appellants has brought to my notice that a number of sale deeds have been executed during the pendency of the suit even after this Court in the previous writ petition [W.P.(C) No. 4213 of 2009] had granted interim protection for four weeks. The interim protection was operative even after the writ petition was disposed of and also application under Order XXXIX Rules 1 & 2 r/w Section 151 Civil Procedure Code was preferred and pending. Learned counsel has demonstrated that on a number of occasions the contesting respondents have concealed and flauted orders of this Court as well as tried to blatantly mislead the Court below respondents have somehow managed to stall the proceedings under Rules 1 & 2 of Order XXXIX r/w Section 151 of the Code of Civil Procedure. 7. Learned counsel appearing on behalf of the respondents tried to support the order of the Court below challenged in the instant appeal by stating that the Court below was of the view that in the event constructions are made, the same can be demolished and thus the appellant could very well be compensated. There is no error and does not call for any interference. 8. After hearing the respective counsel and going through the records, I refrain from giving my opinion regarding the fact brought to my notice that on a number of occasions Court below was misled by the respondents or any misstatement was made to create a confusion since proceedings under Rule 2A of Order XXXIX C.P.C. is still continuing. 8. After hearing the respective counsel and going through the records, I refrain from giving my opinion regarding the fact brought to my notice that on a number of occasions Court below was misled by the respondents or any misstatement was made to create a confusion since proceedings under Rule 2A of Order XXXIX C.P.C. is still continuing. So far proceedings under Rules 1 & 2 of Order XXXIX r/w Section 151 Code of Civil Procedure is concerned, I proceed to examine the arguments on merits. On perusal of the impugned order, I am of the view that when once Court below was of the opinion that a prima facie case as well the balance of convenience lies in favour of the plaintiffs-appellants, then it was liable to grant interim injunction, otherwise the whole purpose of institution of the suit would stand frustrated. Apex Court in the case of Maharwal Khewaji Trust (Regd.) vs. Baldeo Dass, 2005(1) JLJR Page (SC) 44 ruled that the Court should ensure that the other party should not be permitted to change the nature of the property which includes alienation of subject matter of the suit unless defendant is able to make out a case of irreparable loss or damage in the event of grant of an interim injunction. Evidently Court was of the specific view that any partly should not be allowed to change the nature of property by raising a construction and also by permitting alienation of property. Similar view was expressed in another decision Julien Educational Trust vs. Sourendra Kumar Roy and others (2010)1 Supreme Court Cases 379. Paragraphs 25, 26 and 27 of the said judgment quoted below:– "Although, it has been submitted by Mr. Nariman as well as Mr. Bandopadhyaya that loss, if any, to the appellant Trust could be compensated in terms of money, the said submission does not appear to hold good in the instant case. Equally important is the question of balance of convenience and inconvenience since the principal object of the appellant Trust in wanting to acquire the suit property was to extend its school unit at Kolkata. If the suit property is allowed to be commercially exploited by raising multi–storied structures thereupon, the entire object of the suit filed by the appellant Trust will be rendered meaningless and the purpose for which the suit had been filed would be completely defeated. If the suit property is allowed to be commercially exploited by raising multi–storied structures thereupon, the entire object of the suit filed by the appellant Trust will be rendered meaningless and the purpose for which the suit had been filed would be completely defeated. In such circumstances, we are of the view that this is one such case where an interim order is required to be passed to maintain the status quo of the suit property, during the pendency of the suit for specific performance filed by the appellant Trust, but at the same time appropriate directions should also be given so that the suit is disposed of expeditiously. At this stage, it would not be appropriate on our part to express any further opinion on the merits and demerits of the suit. Having found a prima facie case in favour of the appellant Trust, it is our view that in the light of the principles of balance of convenience and inconvenience, interim relief should be granted to the appellant Trust. Accordingly, we allow the appeals and set aside the order of the High Court and direct that the respondents shall not alienate or encumber the suit property or change the nature and character thereof till the disposal of the suit for specific performance filed by the appellant Trust." 9. In the instant case, the Court by not granting an order of status quo or restraining the respondents from making any construction or alienating the land in question committed a gross error of law and acted illegally specially when the finding in favour of the plaintiffs was recorded regarding prima facie case and balance of convenience. Evidently, in the event, the respondents are permitted to make construction and multi–storied building third party interest will be created and if the plaintiffs' suit is decreed, it will be very difficult to get the property back, since the litigation with a number of newly interested parties will ensure that the plaintiffs appellants would never be able to reap the fruits of the decree and probably the dispute will not be resolved for generations to come. 10. In view of the positive finding in favour of the plaintiffs regarding prima facie case and balance of convenience, I am of the opinion that the order refusing interim injunction by the Court below is untenable and liable to be quashed. 10. In view of the positive finding in favour of the plaintiffs regarding prima facie case and balance of convenience, I am of the opinion that the order refusing interim injunction by the Court below is untenable and liable to be quashed. The appeal is therefore allowed and the respondents are specially restrained from either alienating the property or making any construction over it and creating any third party interest. The defendants– respondents cannot be allowed to construct any type of building or structure whatsoever. 11. I am informed by counsel appearing on behalf of the appellants that a number of sale deeds have been executed during the pendency of the suit. The subsequent purchasers have been arrayed as parties to the suit by means of amendment application, which is allowed, but notices are not served as yet. Respondents counsel is also present and represents the defendants in the suit, who have sold the disputed property to different persons, they shall ensure that the service of notice is affected on such defendants who have purchased portion of the disputed land and the trial Court is further directed to ensure that the trial is completed as expeditiously as possible without granting any undue adjournment to either parties. The trial Court shall endeavour to complete the trial within a period of 8 (eight) months from the date after all the parties have put in appearance. Court below shall also refrain from granting any laxity so that the time frame fixed by this Court may be adhered to. 12. In the aforesaid terms, the appeal is allowed.